The Role of Law in Governing Sustainability 9780367746322, 9780367746377, 9781003158837

Table of contents :
Cover
Half Title
Series Page
Title Page
Copyright Page
Contents
List of figures
List of tables
List of contributors
Foreword and introduction
1 The role of net-gain law for governance of a sustainable development
Part 1 Environmental focus
2 What international framework to support the sustainable exploitation of marine energy and mineral resources?
3 The legal dimension of soil protection and sustainable use of soils
4 The conservation and sustainable use of the agroecosystem in international law
5 Subsidiarity for sustainability: historical development and application in the European Union and in federal legal systems
6 Strategy for a sustainable decarbonization of the energy sector in Portugal: identification of priority policy measures
Part 2 Social focus
7 The role of sustainability law in public health in Nigeria
8 More urban gardens, less food waste: innovative ways to achieve SDGs
9 Beyond the legal mechanism: early environmental education as catalyst to achieving a sustainable environment in Nigeria
10 Tribals and forest rights in India: a critical appraisal of the legal literature
11 An analytical framework to review judicial decisions based on the Precautionary Principle with a case study application
Part 3 Economic focus
12 Carbonomics and H2Onomy: the currency standards and trade practices of future environmental governance
13 A systematic literature review on circular economy performance assessment in public sector organizations
14 Institutional investors and climate justice: the role of investors in advancing prevention of human rights abuse in investment chains for fossil-free energy
15 Whistleblowing for better environmental protection in Malaysian society
16 Institutional entrepreneurship in sustainability: the need for radical change processes in private organizations and management schools
17 Summary and conclusions
Index

Citation preview

The Role of Law in Governing Sustainability

This book explores how public and private actors can interrelate to achieve also by means of law a sustainable development which is beneficial for the environment, society and the economy. The Role of Law in Governing Sustainability assesses the structure, functions and perspectives of law in the wider governance frameworks of sustainable development. It provides latest and in-depth insights from each of the three dimensions of sustainable development and the relations among them. Latest political developments on global and regional level related to the environmental, social and the economic dimensions are provided as well as in-depth case studies. Thereby the book explores how international and national laws within governance can help us move towards a more sustainable future. This book will be of great interest to students and scholars of environmental law, global governance and sustainable development. Volker Mauerhofer is Professor and Chair, Environmental Science (Specialization in Social Science), Department of Ecotechnology and Sustainable Building Engineering, Mid Sweden University, Sweden.

Routledge/ISDRS Series in Sustainable Development Research Series Editors: Peter Dobers peter.dobers@sh Volker Mauerhofer [email protected]

The Routledge/ISDRS Series in Sustainable Development Research is the publishing platform of the wide community of 2500+ researchers engaged in multi-, inter- and transdisciplinary research on the need for and experiences with the transformation to a sustainable society. The International Sustainable Development Research Society aims to disseminate knowledge on sustainable development practices in all spheres of society which enables the acceleration of sustainability initiatives: cities, communities, production, innovation, consumption, biodiversity and ecosystem services, agriculture, climate, renewable energy. This series welcomes submissions for high-level cutting-edge research books that push thinking about sustainability in new directions by challenging current conceptualizations and developing new ones. The series offers theoretical, methodological, and empirical advances that can be used by professionals and as supplementary reading in courses in sustainability science, environment and sustainability, development studies, planning, and a wide range of academic disciplines. Titles in this series include: Transdisciplinarity For Sustainability Aligning Diverse Practices Martina M. Keitsch and Walter J.V. Vermeulen The Role of Law in Governing Sustainability Edited by Volker Mauerhofer

The Role of Law in Governing Sustainability

Edited by Volker Mauerhofer

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 selection and editorial matter, Volker Mauerhofer; individual chapters, the contributors The right of Volker Mauerhofer to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Mauerhofer, Volker, editor. Title: The role of law in governing sustainability / edited by Volker Mauerhofer. Description: Abingdon, Oxon ; New York, NY : Routledge, 2021. | Includes bibliographical references and index. Identifiers: LCCN 2020047028 (print) | LCCN 2020047029 (ebook) Subjects: LCSH: Sustainable development—Law and legislation. Classification: LCC K3585 . R655 2021 (print) | LCC K3585 (ebook) | DDC 344.04/6—dc23 LC record available at https://lccn.loc.gov/2020047028 LC ebook record available at https://lccn.loc.gov/2020047029 ISBN: 978-0-367-74632-2 (hbk) ISBN: 978-0-367-74637-7 (pbk) ISBN: 978-1-003-15883-7 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

Contents

List of figures List of tables List of contributors Foreword and introduction

viii ix x xii

VOLKER MAUERHOFER

1 The role of net-gain law for governance of a sustainable development

1

VOLKER MAUERHOFER

PART 1

Environmental focus 2 What international framework to support the sustainable exploitation of marine energy and mineral resources?

21

23

ALIX WILLEMEZ

3 The legal dimension of soil protection and sustainable use of soils

41

IRENE LUCIA HEUSER

4 The conservation and sustainable use of the agroecosystem in international law

56

ANCUI LIU

5 Subsidiarity for sustainability: historical development and application in the European Union and in federal legal systems RASYIKAH MD KHALID

68

vi

Contents

6 Strategy for a sustainable decarbonization of the energy sector in Portugal: identification of priority policy measures

81

J O Ã O J O A N A Z D E M E L O , M A R I A J . F. S O U S A , A L F R E D O M A RV Ã O P E R E I R A , F I L I PA F E R N A N D E S , A N T Ó N I O G A LV Ã O , J O Ã O G R I L O

PART 2

Social focus 7 The role of sustainability law in public health in Nigeria

101 103

TA I W O O D U M O S U , S A M U E L A D E S I N A O K U E S O

8 More urban gardens, less food waste: innovative ways to achieve SDGs

118

ALEXANDRA AFONSO RIBEIRO, LIVIA MADUREIRA, R A Q U E L C A RVA L H O

9 Beyond the legal mechanism: early environmental education as catalyst to achieving a sustainable environment in Nigeria

134

GBADE AKINRINMADE

10 Tribals and forest rights in India: a critical appraisal of the legal literature

149

KUMARJEEB PEGU

11 An analytical framework to review judicial decisions based on the Precautionary Principle with a case study application

168

VA S C O G O N Ç A LV E S

PART 3

Economic focus

185

12 Carbonomics and H2Onomy: the currency standards and trade practices of future environmental governance

187

SEBASTIAN THOMAS

13 A systematic literature review on circular economy performance assessment in public sector organizations HINRIKA DROEGE, ANDREA RAGGI, TOMÁS B. RAMOS

203

Contents 14 Institutional investors and climate justice: the role of investors in advancing prevention of human rights abuse in investment chains for fossil-free energy

vii

222

KARIN BUHMANN

15 Whistleblowing for better environmental protection in Malaysian society

237

HAZLINA SHAIK MD NOOR ALAM, RASYIKAH MD KHALID

16 Institutional entrepreneurship in sustainability: the need for radical change processes in private organizations and management schools

249

EDUARDO WILLS HERRERA

17 Summary and conclusions

264

VOLKER MAUERHOFER

Index

271

Figures

1.1 6.1 6.2 8.1 11.1 13.1 13.2 13.3 13.4 13.5 13.6

3-D Sustainability in detail and from above Primary and final energy intensities of the Portuguese economy Final energy intensity by sector Food waste hierarchy according to the EU Waste Framework Directive Synthesis of the framework of analysis Seven steps to carry out a systematic literature review Documents by year Documents by country/territory Documents by school of thought Assessment approaches Documents by type of organization

6 84 86 121 173 207 208 208 209 210 210

Tables

6.1 Energy efficiency potential estimates for the residential and industrial sectors 6.2 Summary of identified distortions in the energy market, 2017–2019 6.3 Selection of good international practice on energy policy 6.4 Proposed priority energy policy measures 6.5 Measures under development 9.1 Relevant legal framework on environmental protection 11.1 Favourable (+) and unfavourable (−) decisions on restraining orders by area of activity, case and court 11.2 Level of potential seriousness of hazards by area of activity 11.3 Level of application of precaution 11.4 Proportionality of the precautionary measures

85 88 90 91 94 136 176 178 179 180

Contributors

Gbade Akinrinmade, Senior Lecturer: Dept. of Jurisprudence and International Law, Olabisi Onabanjo University, Ago-Iwoye, Ogun-State Nigeria. Karin Buhmann, Professor (Business & Human Rights), Department of Management, Society and Communication, Copenhagen Business School (CBS), Copenhagen. Raquel Carvalho, Associate Professor, Universidade Católica Portuguesa, CEID – Centro de Estudos e Investigação em Direito, Faculdade de Direito – Escola do Porto, Portugal. Hinrika Droege, PhD researcher, CENSE, Center for Environmental and Sustainability Research, Department of Environmental Sciences and Engineering, NOVA School of Science and Technology, NOVA University Lisbon, Campus da Caparica, 2829–516, Caparica, Portugal. Filipa Fernandes, Research Assistant, CENSE – Center for Environmental and Sustainability Research, NOVA University Lisbon, Portugal. António Galvão, Research Assistant, CENSE – Center for Environmental and Sustainability Research, NOVA University Lisbon, Portugal. Vasco Gonçalves, Assistant Professor and Researcher, ISCTE – University Institute of Lisbon, Department of Finance, and Dinâmia-CET/IUL – Centre of Socioeconomic and Territorial Studies, Portugal. João Grilo, PhD Student, Instituto Superior Técnico, Universidade de Lisboa, Portugal. Eduardo Wills Herrera, Full Professor, School of Management, Universidad de los Andes, Bogotá- Colombia. Irene Lucia Heuser, Senior Legal Officer and Head of the Unit EU Policy, EU Law, Development Policy, Ministry for Europe of the State of Brandenburg, Germany, and Chair of the Specialist Group on Soils, Desertification and Sustainable Agriculture of the World Commission on Environmental Law of IUCN (International Union for the Conservation of Nature).

Contributors

xi

João Joanaz de Melo, Associate Professor, CENSE – Center for Environmental and Sustainability Research, NOVA University Lisbon Portugal. Rasyikah Md Khalid, Deputy Dean and Associate Professor, Faculty of Law, Universiti Kebangsaan Malaysia (The National University of Malaysia). Ancui Liu, Lecturer, Faculty of Law, Nankai University, China. Livia Madureira, Assistant Professor, Universidade de Trás-os-Montes e Alto Douro (UTAD), Centre for Transdisciplinary Development Studies (CETRAD), Portugal. Alfredo Marvão Pereira, Professor of Economics, The College of William and Mary, Williamsburg, Virginia, USA. Volker Mauerhofer, Professor and Chair, Environmental Science (Specialization in Social Science), Department of Ecotechnology and Sustainable Building Engineering, Mid Sweden University, Sweden. Taiwo Odumosu, PhD candidate, School of Law, School of Postgraduate Studies, University of Nicosia, Cyprus (Lecturer, Olabisi Onabanjo University). Samuel Adesina Okueso, PhD, Senior Lecturer, Faculty of Education, Department of Human Kinetics and Health Education, Olabisi Onabanjo University, Ago-Iwoye, Ogun State. Kumarjeeb Pegu, Assistant Professor, KIIT School of Law, Campus XVI, KIIT University, Patia, Bhubaneswar, Odisha, India – 751024. Andrea Raggi, Professor, Department of Economic Studies, University “G. d’Annunzio”, 65127 Pescara, Italy. Tomás B. Ramos, Professor, CENSE, Center for Environmental and Sustainability Research, Department of Environmental Sciences and Engineering, NOVA School of Science and Technology, NOVA University Lisbon, Campus da Caparica, 2829–516, Caparica, Portugal. Alexandra Afonso Ribeiro, PhD candidate, Universidade de Trás-os-Montes e Alto Douro (UTAD) Centre for Transdisciplinary Development Studies (CETRAD), Portugal. Hazlina Shaik Md Noor Alam, Senior Lecturer, Faculty of Law, Universiti Kebangsaan Malaysia (The National University of Malaysia). Maria J. F. Sousa, Research Assistant, CENSE − Center for Environmental and Sustainability Research, NOVA University Lisbon, Portugal. Sebastian Thomas, Adjunct Professor, Curtin University, Alix Willemez, PhD, Sustainable Development Consultant, UN expert for ocean and energy policies.

Foreword and introduction Volker Mauerhofer1

Foreword Many minds and hands contributed to this volume. It would not exist otherwise. First to thankfully mention are all the contributors who provided the essence. Their chapters constitute the means and the ends. Without dedicated co-authors, specialized in their subjects and keen to produce quality on time, such a project should not even start. But it started 14 months ago, right after the 25th annual conference of the International Sustainable Development Research Society (ISDRS) (www.isdrs.org) held in Nanjing, China. The present volume constitutes one of the outcomes of several tracks of that conference, but particularly the track about the legal aspects of sustainable development. Hence secondly, the editor expresses his gratitude to the local organizers of Nanjing University and the whole team involved at ISDRS for making this event possible and this volume a reality. Furthermore, the numerous hours voluntary invested in the anonymous peer review are acknowledged also in this foreword: nameless but highly appreciated support which is crucial for the achievement of such an endeavour and which should not be missing in any edited volume. Fourth, the publisher is indispensable for every book project, and Routledge made this one a truly unforgettable experience with surprising and interesting outcomes. Last but not least, often forgotten but of great importance are the professional and private surroundings of each co-author, the former on providing the logistics support and the latter on the mental wellbeing. In particular, the second kind of surrounding is invaluable for maintaining the life− work balance in (COVID-) times like this within a teamwork with (hopefully not too many) stressful times caused by a (hopefully not too) keen editor. This edited volume is therefore dedicated to those “mental-balancers” in our surroundings.

Introduction This edited book has governance, law and sustainability as the main overall themes. It provides, by means of 17 original and multifaceted contributions by a total of 25 co-authors from all major continents, an introduction as well as focused insights on the environmental, social and economic aspects, respectively. The particular objectives of this volume are:

Foreword and introduction xiii 1 2 3 4 5 6

to provide an overview on theoretical and practical aspects as well as detailed case studies; to provide insights from different jurisdictions and thematic fields; to show the variety of governance issues related to all three dimensions of sustainable development; to bring contributions together from different continents under the same overall focus topic; to bring together practitioners and researchers; and to bring together early-stage and senior academics.

Governance and law are issues that are inherent in the environmental, social and economic dimension of a sustainable development. Conceptually, governance and especially law therein play a crucial role in a horizontal as well as in a vertical way. Horizontally, they address the environmental system, the therein embedded social system and the economic system (which is embedded in both systems earlier mentioned), respectively. Vertically, they influence the interplay between these systems. Governance and the law therein have – as socially constructed factors – a crucial role in shaping a common sustainable future of these three inevitably interrelated systems. Methodological issues that form the basis of this book are in particular legal hermeneutic but also empirical−analytic approaches, especially implemented by cases studies. The difference of this volumes to other ones in this field are manifold. First, this book does not restrict itself to only legal or political science fellows but combines these groups within the authorship. Second, the book involves also contributions from natural scientists and economists and therefore goes beyond authors coming solely from social science disciplines. Third, the book does not concentrate on one single approach or description of governance but allows multiple conceptualizations and implementations. It is therefore more open-minded towards a plurality of solution ideas. Fourth, the book has a focus on law as a unique tool within all the instruments and policies within governance, whose particular characteristics are available only to public authorities (among all stakeholders) with its societally agreed-upon function to serve as a peaceful ultima ratio among competing environmental, social and economic interests. In this way, the book is more solution oriented than usual governance books. The book informs about ways how public and private organizations can interact to achieve a sustainable development of the environment, the society and the economy. It first starts with an introduction that provides insights into the emerging goal of global net gain law within the international environmental and sustainability governance towards realigning the environmental, social and economic dimension of a sustainable development (Mauerhofer, 2021). After this introduction, the main part of the book provides focused views on environmental, social and economic issues, respectively. Each of these individual views also covers the related topics of the other two issues. In the first main part, the focus is an environmental one. It covers the conservation and sustainable use of the marine sector (Willemez, 2021), of soil (Heuser, 2021), of agro-ecosystems (Liu, 2021) and of water

xiv

Foreword and introduction

(Khalid, 2021), as well as the decarbonization of energy production (Melo et al., 2021). The part afterwards with the social focus addresses issues related to health (Odumosu and Okueso, 2021), food (Ribeiro et al., 2021), education (Akinrinmade, 2021), indigenous peoples’ rights (Pegu, 2021) and jurisdiction (Gonçalves, 2021). Finally, the part with the economic focus explores topics around carbon and water economics (Thomas, 2021), circular economy (Droege et al., 2021), green investor transitions respecting human rights (Buhmann, 2021), whistleblowing for environmental protection in companies (Noor Alam and Khalid, 2021) and radical changes within institutional entrepreneurs (Wills Herrera, 2021). The book tries to provide insights into the topic from many geographic perspectives. It includes also a mixture of early-stage researchers and established colleagues as well as practitioners to show a wide kaleidoscope of viewpoints and analysis. In this way, the book with its multifaceted contributions remains timeless, undriven by modern buzzwords and disruptive phenomena appearing (and disappearing) occasionally. Instead it focuses on the ever increasing importance of the steering influence through binding public norms against a (still) continuously decreasing global biological and social capital and capacity. Volker Mauerhofer, Mid Sweden University, 4 October 2020, Östersund/Schweden

Note 1 Professor and Chair, Environmental Science (specialization in Social Science), Department of Ecotechnology and Sustainable Building Engineering, Mid Sweden University, Sweden.

References Akinrinmade, G. (2021), Beyond Legal Mechanism: Early Environmental Education as Catalyst to Achieving a Sustainable Environment in Nigeria. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Buhmann, K. (2021), Institutional Investors and Climate Justice: The Role of Investors in Advancing Prevention of Human Rights abuse in Investment Chains for Fossil-free Energy. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Droege, H., Raggi, A., Ramos T.B. (2021), A Systematic Literature Review on Circular Economy Performance Assessment in Public Sector Organizations. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Gonçalves, V. (2021), An Analytical Framework to Review Judicial Decisions Based on the Precautionary Principle with a Case Study Application. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume)

Foreword and introduction xv Heuser, I. (2021), The Legal Dimension of Soil Protection and Sustainable Use of Soils. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Khalid, R. Md. (2021), Subsidiarity for Sustainability: Historical Development and Application in the European Union and in Federal Legal Systems. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Liu, A. (2021), The Conservation and Sustainable Use of Agroecosystem in International Law. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Mauerhofer, V. (2021), The Role of Net Gain Law for Governance of a Sustainable Development. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Melo, J.J., Sousa, M.J.F., Pereira Marvão A., Fernandes F., Galvão A., Grilo J. (2021), Strategy for a Sustainable Decarbonization of the Energy Sector in Portugal: Identification of Priority Policy Measures. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Noor Alam H.S. Md., Khalid R. Md. (2021), Whistleblowing for Better Environmental Protection in Malaysia Society. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Odumosu T., Okueso S.A. (2021), The Role of Sustainability Law in Public Health in Nigeria. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Pegu K. (2021), Tribals and Forest Rights in India: A Critical Appraisal of the Legal Literature. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Ribeiro A.A., Madureira L., Carvalho R. (2021), More Urban Gardens, Less Food Waste: Innovative Ways to Achieve SDGs. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Thomas S. (2021), Carbonomics and H2Onomy: The Currency Standards and Trade Practices of Future Environmental Governance. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Willemez A. (2021), What International Framework to Support the Sustainable Exploitation of Marine Energy and Mineral Resources? In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume) Wills Herrera E. (2021), The Need for Radical Change in Organizations: Institutional Entrepreneurs Towards Sustainability in the Anthropocene Society. In Mauerhofer V. (Ed.), The Role of Law in Governing Sustainability. Routledge ISDRS Series on Sustainable Development Research (this volume)

1

The role of net-gain law for governance of a sustainable development Volker Mauerhofer1

1. Introduction Environmental deterioration started to constitute in the second half of the past century a widely recognized global problem (IUCN 1948, Carson 1962). Several transcontinental United Nations (UN)–administered conventions as well as legal acts of the European Union (EU) were afterwards concluded in response (for an overview e.g. Mauerhofer and Nyacuru 2014). Beginning with this millennium, the UN and the EU enacted several political initiatives particularly to stop the loss of biodiversity. These include the 7th Millennium Development Goal (UN 2000), the Aichi Targets (UN 2010), the EU Biodiversity Strategy towards 2020 (EU 2011) and Sustainable Development Goals 14 and 15 (UN 2015). These practical efforts have focused on no net loss and related questionable offset approaches (UN 2010, EU 2011, Prieur, 2012, Calvet et al, 2015, Lindenmayer et al. 2017, O’Neill 2019). IPBES (2019), UN (2020) and the EU (2020a) assume that most environmental goals, such as those embodied in the Aichi Targets (UN 2010), in the EU Biodiversity Strategy (EU 2011), and in the 2030 Agenda for Sustainable Development (UN 2015) have failed so far (see also e.g. Elder and Olsen 2019; Zeng 2020; Mauerhofer 2020). In 2020, the UN as well as the EU have introduced a much more ambitious main goal than solely stopping the rate of loss or the total extent of the loss of biodiversity, namely to even to revert it. Thus, the UN (2020 p. 6 para 5) aims in the Zero-Draft of the Post-2020 Global Biodiversity Framework: to transform economic, social and financial models so that the trends that have exacerbated biodiversity loss will stabilize in the next 10 years (by 2030) and allow for the recovery of natural ecosystems in the following 20 years, with net improvements by 2050 to achieve the Convention’s vision of “living in harmony with nature by 2050”. The EU establishes in the new Biodiversity Strategy 2030 (EU 2020a p. 3 and p. 20) its contribution to the overall headline ambition to ensure that by 2050 all of the world’s ecosystems are restored, resilient, and adequately protected. The world should commit to the net-gain principle to give nature back more than it takes.

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Volker Mauerhofer

Similarly, the EU (2020b p. 4) proclaims in its new Circular Economy Action Plan, related to sustainable production and consumption, that the: EU needs to accelerate the transition towards a regenerative growth model that gives back to the planet more than it takes. These quoted ambitions and the related goals and targets could be seen as an expression for the assumption that other more ambitious trajectories for conserving and sustainably using environmental assets and achieving sustainability are needed in the sense of transformative changes (IPBES 2019, UN 2020). The UN envisages for the new overall net-gain request that the Post-2020 Global Biodiversity Framework “will be implemented primarily through activities at the national level, with supporting action at the subnational, regional and global levels” (UN 2020 p. 6). Similarly, the EU (2020a p. 4) outlines the need for a new governance framework, regulation of gaps, improved legal implementation at the national level, and additional actions on all geopolitical levels. This chapter tries to make a start for this endeavour by outlining a proposed research agenda for net-gain law. Due to the novelty of this global net-gain request by the UN and EU, it is clear that the role of law for its implementation is not assessed in detail yet, neither nationally nor on other levels of the geopolitical scale. After a short description of the methods applied, the three main parts of the proposed research agenda will be outlined and initially analysed in the findings. The chapter will end with a discussion and conclusions.

2. Methods Hermeneutic methods are applied, such as comparative legal analyses and different types of text interpretation (e.g. historic, wording, rational). Additionally, the whole approach takes a normative stance as it provides a proposal for a research agenda.

3. Findings 3.1. The interpretation of net gains in connection with law The quotations of the UN and EU documents provided in the introduction show that different terms (e.g. “net improvements”, “net-gain”, “planet”, “nature”) are currently used in various geopolitical and thematic contexts (e.g. global, regional, biodiversity, circular economy). They address a wide range of scales and levels (in the sense of Cash et al. 2006). Also in natural science, the terms “net contribution”/”net-gain” and their differences to no net losses have been already intensively discussed for the past decade. The literature spreads over energy,

Net-gain law 3 matter and space related to species and ecosystems, their conservation as well as sustainable use (e.g. Arudchelvam and Nirmalakhandan 2012, Kyriazi et al. 2015, Sullivan and Hannis 2015). Regarding policymaking for net gains, the difference between absolute and relative goals, targets and scenarios has been highlighted: a relative approach is usually of narrow impact and specific to single projects (e.g. in Environmental Impact Assessment [EIA]), while an absolute one ecosystem based and overwhelmingly encompassing several jurisdictions (e.g. Mauerhofer 2012, Bull and Brownlie 2017, Maron et al. 2018, Mauerhofer 2019a, Knight-Lenihan 2020). The three quoted and interlinked global and regional approaches constitute broad absolute goals across the jurisdiction(s) policies cited. Recently, BaynhamHerd et al. (2018) found in their statistical comparison that governance (defined by mainly law-related indicators) explains the variation in national responses to the biodiversity crisis. Several projections for the contribution of law to global biodiversity net gains have been already articulated. Among them are a new, states-negotiated framework with multiple novel metrics (Bull et al. 2020), a measurement framework based on the United Nations System of EnvironmentalEconomic Accounting (SEEA) (Burnett et al. 2020) or Absolute Sustainability Governance based on applying different existing and behaviour-changing instruments by means of rule-, economic- and information-focused incentives (Mauerhofer 2020). Given this context, it appears to be highly important to identify how the quoted absolute goals and their currently related targets are commonly understood and where major differences in understanding occur in order to support the preparation of legally coordinated net-gain implementation at the subnational, national and supranational levels. 3.2. Establishing net-gain law by showing how existing and future law can contribute to environmental net gains 3.2.1. Background One of the reports previously cited (EU 2020b) calls for a regenerative growth model that reflects the long established conclusion that continuously increasing throughput of energy and matter in the production and consumption scheme is incompatible with the conservation and sustainable use of natural resources (Daly 1996, Mauerhofer 2011, Otero et al. 2020, Leclére et al. 2020). This is also valid for cases where this threat of growth to biodiversity lays in the underuse of certain socio-ecological systems (Takeuchi 2010, Mauerhofer et al. 2018). Countries of the affluent Global North are expected to run a net-gain policy even under a global no-net-loss policy, due to the assumed managed net loss in non-affluent countries where the imperative for human development is greatest (Maron et al. 2020). This appears to be valid if – such as in the UN and EU approaches just quoted– a global net gain until 2050 and a global no net loss until 2030 are envisaged. Such a conclusion is compliant with the principle of common

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but differentiated responsibility (Mauerhofer 2008) and complementary to the ecological footprint concept (Rees 2002, Wackernagel 2009, Lin et al. 2018). That indicates that affluent countries of the Global North are always supposed to take the lead (Buscher et al. 2017) and practice an overarching net-gain policy, related to their territory or, if their policies would have negative impacts abroad, then beyond their territory. Carlman et al. (2015, p. 97) emphasized the societal control system through the role of law as the “final safety net” against environmental pollution. Similarly, Mauerhofer (2020) highlighted instruments that act through rule-focused incentives as the ultimate ratio and that are only available to public authorities to change individual’s behaviour towards a public interest. Moreover, Scott (2020) recently showed that law can also be, under certain conditions, extraterritorially implemented, with positive net outcomes globally for a sustainable development. A strong and central involvement of law and of sustainability theory seems to be in this combined way crucial. Moreover, the change of the goal of no net loss of biodiversity toward biodiversity net gains becomes even much more ambitious, and this combination seems to be necessary for achieving the new global goal. Legal theory has recently and continuously approached sustainability from more ethical standpoints (Bosselmann 2016, Montini 2020) to more principleoriented approaches (Daya-Winterbottom 2020, Van Calster 2020). While these all are reasonable contributions, a more systemic approach can be also useful. Those who have tried to come up with a more holistic concept (Garver 2013, 2019; Mathis 2018) are not convincing yet regarding the potential application in practice of their more systemic thoughts. The request for net gains requires a fundamental change in thinking. The usual concepts of environmental and nature conservation that often at best mitigate the worst harms (e.g. of a new construction) and of law and its relation to other instruments need to be “creatively destructed” (Kivimaa and Kern 2016). 3.2.2. 3-D Sustainability basics Numerous main concepts describe key features of sustainable development and even try to express them with one figure (e.g. Daly 1996, Dyllick and Hockerts 2002, Vince and Raworth 2012). These figures appear widely insufficient as they contain misinterpretations of embeddings, misjudgements of equity between the three dimensions of sustainable development, a lack of expression of limitations, and/or a lack of adequate decision support (Mauerhofer 2008, 2019a, 2020). In comparison, the research agenda proposed here takes its starting point from a decision support concept called 3-D Sustainability (Mauerhofer 2008, 2019a). Preliminary application results from Europe (EU Austria/Schweden; Mauerhofer 2012, 2018b, Elbakitze et al. 2013), Japan (Mauerhofer 2018b) and the Americas (Volkmer and Pedrozo 2019) indicate the global general applicability of this system, as well as for the analysis of the role of law. This is valid for situations

Net-gain law 5 of biodiversity loss driven by overuse as well as underuse (Mauerhofer et al. 2018, Volkmer and Pedrozo 2019) for “rebuilding the relationship between people and nature” (Takeuchi 2010) in order to fulfil the new net-gain request. Decision support from 3-D Sustainability can therefore identify substantive as well as procedural law on the supranational, national and subnational levels (Mauerhofer 2012, Elbakitze et al. 2013, Mauerhofer 2019a) and policy and instrument mixes (Mauerhofer 2020) which contribute to biodiversity net gain. This all is very promising for the application of 3-D Sustainability on the new global net gain request on the UN and EU levels. 3-D Sustainability differentiates between stock (capitals) and flows (capacities) of a system and its boundaries (carrying capacities). It can be applied on each topic and geographic level and derives from the differentiation of a preliminary hierarchy of six decision-making criteria. They are capable of being flexibly applied based on the Precautionary Principle. This sustainability decision support system will be used here to test it on the new net-gain request. Four decision support criteria within 3-D Sustainability are the most closely linked to the environmental dimension of sustainable development: sufficiency, ecological equity, eco-effectiveness, eco-efficiency. They will be used, together with the capital and capacity elements of 3-D Sustainability, for further analysis. Thus, as the main conceptual basis for the second and third parts of the proposed research agenda, 3-D Sustainability will be applied (Figure 1.1). The environmental system is described in this concept as the basic capital (the “stock” or “source”) which is “capacitated”, whereas the carrying capacity can be understood as a safe operating space, or to speak in the terms of EU’s Habitats Directive, as a favourable conservation status (e.g. case study of Natura 2000 in Mauerhofer 2008). Important for the proposed research agenda, 3-D Sustainability provides a flexible hierarchy among the six criteria for decision making (for details Mauerhofer 2008, 2019a). Four of these criteria are in particular useful to support further analysis due to their closeness to the environmental dimension (including biodiversity) of sustainability. Sufficiency relates to the willingness of individual actors to voluntarily contributing to common goals, such as supporting forest conservation by setting aside valuable forest stands. Eco-effectiveness relates to the capacity of an action to achieve the desired ecological objective in absolute terms, either through the reduction of pressures or through the increase of the source or sink capacities of the environment (e.g. by means of restoration). Ecological equity considers how the effects of an action are shared within the current society and its consequences for future generations. Eco-efficiency addresses the relation between “resource input” for a product or service in relation to the achieved outcome but is prone to rebound effects in the case of the growth of the number of products or services (Binswanger 2001, SaeyVolckrick 2020). All these four criteria are particularly equipped to support the further assessment of actions/inaction towards a flexible provision of decision support, taking into consideration the burden of proof also in conflicting nature conservation situations by applying the Precautionary Principle (Mauerhofer

Source: Adapted from Mauerhofer 2008:498ff and 2020:18; triangle based on Dyllick and Hockerts, 2002.

Figure 1.1 3-D Sustainability in detail and from above

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Net-gain law 7 2008, 2019a). In this context, this part of the proposed research agenda combines the new global biodiversity net-gain request with latest sustainability theory, in order to prevent another unsuccessful implementation of global and regional biodiversity goals (UN 2020, EU 2020a). 3.2.3. Sufficiency and its context with net-gain law This subpart of the research agenda suggests identifying how procedural and substantial net-gain law is currently and how it could additionally support sufficiency. Sufficiency is here defined as the “individual’s decision to consume/produce no units more or even less units”, and is characterized, regarding its reduction objective, as “absolute, quantitative and/or qualitative, but sustainability depends on current consumption/production level” (Mauerhofer 2020 p. 17). This decision can be triggered by law and can lead to global biodiversity and environmental net gains. Sufficiency is the criterion on the top of the decision support ladder introduced by 3-D Sustainability (see Figure 1.1). It has been already widely discussed as a tool contributing to the implementation of sustainable development (see earlier e.g. Dyllick and Hockerts, 2002, Alcott 2008, Schneidewind and Zarnt 2014). Implications of sufficiency for policymakers have been so far usually discussed in a broader than the legal sense (Lal 2009, Heindl and Kanschik 2016, Sandberg 2018, Hamilton-Hart 2019). 3.2.4. Eco-effectiveness and its context with net gain law This subpart of the research agenda proposes to identify how procedural and substantial net-gain law is currently supporting and how it could additionally support eco-effectiveness. It builds upon Bodansky’s (2011) threefold differentiation of effectiveness. It concentrates therein on problem-solving effectiveness, which focuses on the ability of the legal rule to solve or mitigate the problem it was designed to address. In this sense, eco-effectiveness is understood here as the “[c]apacity of an action to achieve its expressed environmental objectives in the sense of absolute improvements without rebound effects” (see Mauerhofer 2019a p. 356). The proposed research agenda takes in this context a global focus and goes beyond the usual mitigation approaches, applied narrowly and single project oriented, wherein often a significant loss of biodiversity is taking place, even when development was legally compliant (Arlidge et al. 2018). 3.2.5. Ecological equity and its context with net gain law This subpart of the research agenda suggests identifying how procedural and substantial net-gain law in negotiations is currently applied by key decision makers and how it could additionally support ecological equity. The substantial and procedural rights of nature, generally those of future generations, have already been discussed since the early 1970s (Stone 1972, Brown-Weiss 1989, Hubacek and Mauerhofer 2008, Chapron et al. 2019). This research agenda subpart builds

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thereon but steps further in not only requesting equal rights but in going beyond in terms of a net contribution to biodiversity. It does so by applying Rawls’s (1971) “veil of ignorance” in an extended and innovative way beyond human intergenerational equity. Rawls’ theory of justice suggests that people imagine themselves in an original position behind a veil of ignorance where they know nothing of themselves and their natural abilities or of their position in society. This subpart of the proposed research agenda does not only apply Rawls’ theory also on nonhuman species, but extends the negotiation outcome request towards a net-gain for those species (besides ecosystems). 3.2.6. Eco-efficiency and its context with net gain law This subpart of the research agenda proposes to identify how procedural and substantial net-gain law is currently and how it could additionally support ecoefficiency. It is state-of-the-art knowledge that eco-efficiency is especially prone to rebound effects (e.g. Jevons 1865, Binswanger 2001, Alcott 2008, Figge et al. 2014). Much literature recently indicated in an overall way the relationship between “policies” and rebound effects (for a recent summary e.g. SaeyVolckrick 2020). Sometimes legal aspects are more generally mentioned in this literature (e.g. Sunikka 2006, Boonsothonsatit et al. 2015, Scholz 2016). Much less attention is given in the literature to the question of how concrete laws could effectively address, in an enabling way or in a binding (prohibiting or prescribing) way, this effect (but see recently e.g. Mathis 2018, Mauerhofer 2019a). Regarding the net-gain goal in the EU’s new Circular Economy Action Plan (EU 2020b) previously quoted, it will be central in how far “refusing” additional production and consumption can be supported by law (see e.g. Gorrie 2020). The proposed research agenda takes up this challenge by not only addressing the stop of rebound effects. It even addresses the question of how to revert them through various legal measures including the ones aimed at “refusing” within a circular economy (Reike et al. 2018) when it comes to biodiversity losses and environmental deterioration. 3.3. Integration of sufficiency, eco-effectiveness, ecological equity and eco-efficiency within net-gain law 3.3.1. Background The four criteria of sufficiency, eco-effectiveness, ecological equity and ecoefficiency, are individually assessed in the second part of the proposed research agenda, do not act in a vacuum. But a detailed and separate analysis of them in connection with net-gain law is a precondition to determining their interrelations in terms of integration within a sustainable development. Improved integration among the three dimensions of a sustainable development is increasingly considered a necessity, also with the UN 2030 Agenda (e.g. Deacon 2016, Nilsson

Net-gain law 9 et al. 2016, Stafford-Smith et al. 2017, Stevens 2018, Mauerhofer 2019a). The main areas of integration among the four criteria proposed in the third part of this research agenda are (1) conflict interrelation, (2) decision-making, (3) instrument and policy mixes, and (4) geopolitical legal interplay. All four areas aim at an improved integration among the three dimensions of sustainable development – the environmental, the social and the economic – such as recently established again (UN 2012, 2015). Here they will be assessed through a particular lens on achieving global biodiversity net gains. Interrelations among the four criteria of 3-D Sustainability assessed have been already discussed in detail (e.g. Mauerhofer 2008; Figge et al. 2014, Mauerhofer 2019a). Each of the four areas is described next more in detail. 3.3.2. Conflict interrelation This subpart of the research agenda proposes to categorize synergies and trade-offs within net-gain law regarding the four criteria between (anthropocentric) environmental policy and (ecocentric) biodiversity policy. Biodiversity conservation regularly conflicts with human overuse or underuse (Takeuchi 2010, Young et al. 2010, Mauerhofer et al. 2018). Often controversies also occur among (anthropocentric) environmental and (ecocentric) biodiversity policies such as in connection with replacing fossil by non-fossil energy or material resources, if such replacements negatively affect biodiversity. This regularly occurs regarding energy from water power, wind power or biomass on the one side and biodiversity on the other side; such conflicts are often also referred to as environmental conflicts or green dilemmas (e.g. Montefrio 2013, Weber and Cabras 2017, Bergius et al. 2020). These “intra-environmental conflicts” (Schulev-Steindl 2010) are an expression as well as a consequence of the planetary boundaries related to environmental sources and sinks in general (Rockstrom et al. 2009, Steffen et al. 2015) and particularly to biodiversity in terms of overuse and underuse (Mauerhofer et al. 2018). Intra-environmental conflicts between biodiversity’s interests and human-induced interest in the environment need to be prevented and synergies fostered (Mauerhofer and Essl 2018), also by including wider sustainability criteria beyond narrow projectoriented approaches (Mauerhofer 2012, Maron et al. 2018). This is particularly valid for identifying the law’s contribution to achieving global biodiversity net gains. 3.3.3. Precautionary decision making This subpart of the research agenda proposes to identify means of priority setting within the four criteria in order to deal, especially under uncertainty, with norms fully or partly conflicting with net gains. Decision making often takes place when not all options of action/inaction are known and their potential outcome is unclear. Decision making towards priority setting was already assessed in detail with regard to 3-D Sustainability (Mauerhofer 2008, 2012, 2013, 2020, Elbakidze 2013, Volkmer and Pedrozo 2019). Therein, the preliminary hierarchy

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among the criteria of 3-D Sustainability has been at stake in terms of scientific uncertainty and the Precautionary Principle. Thus only if the newly intended action/omission does not bring any additional significant negative environmental effect and no scientific uncertainty remains regarding this effect, that preliminary hierarchy could be changed (Mauerhofer 2008, 2016a, Elbakidze et al. 2013, Volkmer and Pedrozo 2019). Considering the new UN and EU request for global net gain, the element of “not any additional significant negative environmental effect” needs to be newly assessed towards a “positive environmental effect”. Moreover, decision making under uncertainty has been further developed in the legal literature with more detailed assessment aspects to consider (McGillivray 2012; Lees 2016). The European Court of Justice has recently taken, regarding compensatory measures, a very strict stand that places crucial importance on the absence of uncertainty (Schoukens 2017, Mauerhofer 2019c, Squintani 2020). With biodiversity offsetting, usually loss seems certain while gains remain uncertain in this project impact approach (Weissgerber et al. 2019, Ermgassen et al. 2019). Addressing uncertainty in a precautionary way and shifting some burdens of proof particularly in such narrow project-oriented applications seems also to be inevitable (Mauerhofer 2019b,c) for biodiversity net gains. Gonçalves (2021) has proposed an extended framework that introduces as new criteria the seriousness of the nature of the risk, the level of evidence required and the level of severity of precautionary measures. 3.3.4. Instrument and policy mixes This subpart of the research agenda proposes to test the contribution of law as a rule-focused incentive in the implementation of net gain (a) alone or (b) in combinations with other economic-incentive focused and/or (c) information-incentive focused instruments and to prove the causality of this/these contribution/s. Legal institutions do not act in a vacuum, but they are always embedded in and interacting with a wider policy framework (North 1990, Ostrom 2010, 2011). This embedding and the related policy mixes receive increasing attention in science (Rogge and Reichardt 2016), particularly related to transitions towards sustainability (Kivimaa and Kern 2016) and instrument mixes towards biodiversity conservation (e.g. Klassert and Moeckel 2013, Barton et al. 2017). Three main types of instruments are usually differentiated. These are instruments that work with rule-, economic- and information-focused incentives, commonly also referred to respectively as “sticks”, carrots” and “sermons” (e.g. Vedung 1998, Serbruyns and Luyssaert 2006, Mauerhofer 2018a). These instruments usually relate also to certain policy purposes (Rogge and Reichardt 2016). The biodiversity-related studies on instrument and policy mixes (e.g. Klassert and Moeckel 2013, Ring and Barton 2015, Illes et al. 2017, Barton et al. 2017) concentrate so far on the effect of certain economic instruments, on a regional focus and/or on a heuristic approach. This subpart of the research agenda suggests to focus on law supporting all three types of incentives, to choose a worldwide approach, and to apply an empirical–analytic method to statistically assess mixes among these three

Net-gain law 11 instrument categories in relation to progress towards global biodiversity net gains (similarly to e.g. Verhaeghe 2020). 3.3.5. Geopolitical legal interplay This subpart of the research agenda proposes identifying the best practices and their constituting factors of the interplay between supranational, national and subnational law contributing in different jurisdictions to the implementation of net gain. Multilevel governance describes the interplay between the supranational, national and sub-national levels in the setting and implementation of political objectives (Bevir 2009). It is playing an important role in implementing global biodiversity policy (Gómez-Baggethun et al. 2013, Reinecke et al. 2014, Mauerhofer 2020). In several cases, the top-down or bottom-up implementation of supra-national rules has already shown net gains for biodiversity (e.g. Donald et al. 2007, Mauerhofer 2011). In democratic settings, parliaments usually transform such norms into legislation, and courts and administrations play globally essential roles in the final execution and enforcement of such transformed rules (Mauerhofer and Larssen 2016, Gallo-Cajiao et al. 2019). Even if the parliamentary transformation is not done or is incorrectly done, such rules may be directly applied by courts and administrations and lead to global net gains for biodiversity (CJEU 2004, Gaspar-Szilagyi 2015, Mauerhofer 2016b, Rasmussen 2017). Factors for successful national implementation of supranational rules are manifold and can be quantitatively and qualitatively determined (e.g. Mauerhofer et al. 2015), also within this proposed research agenda. In summary, the proposed research agenda provides several new unconventional trajectories worldwide for the improved implementation of law in conflicting and multi-level situations which will positively impact the transitions toward global biodiversity and environmental net gains.

4. Discussion and conclusion The UN document previously quoted (UN 2020) is a zero draft with preliminary goals (and related targets) which is subject to ongoing discussion and is to be concluded at the next Conference of Parties of the CBD scheduled for 17–30 May 2021. Even if the overall direction of net contributions is not adopted by the parties, this does not constitute a challenge that cannot be dealt with. As shown, the EU has already adopted twice the net-gain principle as a global goal (EU 2020a,b). This alone provides – due to its multilevel direction on the geopolitical scale – enough incentive for multi- and interdisciplinary assessments of this worldwide net-gain request. Achieving the conservation and sustainable use of biological diversity probably continues to be one of the most demanding challenges in global environmental governance, and it is also driven by all the other environmental challenges, including climate change (Rockstrom et al. 2009, Steffen et al. 2015, IPBES 2019, Otero et al. 2020). Building upon the United Nations’ and European

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Unions’ overall agendas, the 2020 EU Circular Economy Action Plan and the 2020 EU Biodiversity Strategy both urge a policy that gives back to the planet more than it takes, i.e. “net-gain” (EU 2019, 2020a,b; UN 2020). This newly introduced net-gain request poses unprecedented challenges to the reconciliation of the three dimensions of sustainable development on all scales and levels of governance. The implementation of net gains by governmental authorities is considered essential (EU 2019, 2020a,b; UN 2020) with their unique ability among all stakeholders to enact and implement laws, including tax laws by national governments (Mauerhofer 2020). During the past two decades, the global political and legal efforts have mainly goals such as stopping the increase of biodiversity loss rate (EU 2011) or non-regression/no net loss (Prieur 2012, O’Neill 2019). They reflect solely relative and defensive endeavours as well as questionable offset policies and practices (e.g. Calvet et al. 2015). The newly launched Net-Gain-Principle at the UN and EU levels constitutes a much more proactive, absolute and globally crucial challenge to all stakeholders involved. This includes those with the unique ability to establish binding public norms in terms of rule-focused incentives (provided by law) that – alone or combined with other economic-focused and information-focused incentives – can achieve results of net gains. The importance of law alone and in combination with other instruments has been recently clearly established in connection with strong sustainability science (Garver 2013, 2019, Kotzé 2017, Mauerhofer 2016b, 2020), biodiversity conservation (Morgera and Razzaque 2017, Mauerhofer 2019a) and ecosystem service protection (Ruhl and Salzman 2007, Mauerhofer 2018a). Now, it is absolutely timely and pressing to identify the enabling, prohibitive and prescriptive contributions of law for implementing the new global net-gain biodiversity goal, due to the unprecedented challenges associated with it also in the light of the previously even less ambitious but widely failed goals yet. The overarching objective of this chapter was to outline a first research agenda for the contribution of law to achieve the latest global and European Union biodiversity and sustainability goal of planetary net gains by 2030. That goal entails that countries of the affluent Global North are expected to run a net-gain policy achieving globally positive outcomes for the planet already by 2030 and beyond. This research agenda proposed to assess net-gain law related to enabling and binding democratic norms within the frame of the latest 3-D Sustainability theory with a focus on sufficiency, eco-effectiveness, ecological equity and eco-efficiency (Mauerhofer 2020) for practical current and future decision making in legislation and implementation. Past and ongoing efforts to mainly stop environmental deterioration as well as the loss of biodiversity and to keep the world on a sustainable pathway within planetary boundaries have widely failed so far. This new and main net-gain goal from 2020 is, in its ambition, unprecedented and requires systemic and transformative changes beginning already with 2021–2030 and beyond to globally reach the goal in 2050 at the latest. The implementation of this research agenda of net-gain law will act as a “motor of creative destruction” (Kivimaa and Kern 2016) towards a sustainability transition through a mind- and behaviour-changing contribution of the law for achieving global biodiversity and environmental net gains.

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Acknowledgement The author thanks Ludde Edgren PhD and Nina Erkenstam PhD, both Mid Sweden University, for their helpful input and careful reading of previous versions of this text.

Note 1 Professor and Chair, Environmental Science (Specialization in Social Science), Department of Ecotechnology and Sustainable Building Engineering, Mid Sweden University, Sweden

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Part 1

Environmental focus

2

What international framework to support the sustainable exploitation of marine energy and mineral resources? Alix Willemez1

List of abbreviations Abbreviation

Description

CBD CJCE EC EU ICJ IMO IOPCF ITLOS MARPOL MPA OECD SDGs UN UNCLOS UNEP

Convention on Biological Diversity Court of Justice of the European Communities European Communities European Union International Court of Justice International Maritime Organization International Oil Pollution Compensation Fund International Tribunal for the Law of the Sea International Convention for the Prevention of Pollution from Ships Marine Protected Area Organisation for Economic Co-operation and Development Sustainable Development Goals of the United Nations United Nations United Nations Convention on the Law of the Sea United Nations Environment Programme

1. Introduction 1.1. Background and context About 70.8% of the earth’s surface is covered by the ocean. The most unknown parts of the ocean are the deep seabeds located between 3000 and 6000 m which account for 70% of it and represent the largest ecosystem in the world (RamirezLlodra et al., 2010). The ocean is therefore vast but also extremely important for all living creatures, providing many vital ecosystem services (Gavouneli, 2016), as well as energy and mineral resources upon which the world’s economy is based (Ray, 1970). By 2050, 9.7 billion people will need electricity, transport and communications means (UN, 2019). To date, most of the non-renewable energy and mining resources that humanity needed came from the exploitation of the land. Faced with the exponential growth

24 Alix Willemez in demand for energy and minerals, many companies turned to the sea to extract its resources. It is estimated, for example, that 84% of the world’s reserves of rare metals and rare earths are to be found at the bottom of the oceans (Pigenet, 2014; Takaya et al., 2018). For 30 years, the ocean has been regulated in some parts, but it today faces intensive use which threatens it (UN, 2016; World Ocean Review, 2016). The projected expansion of marine energy and mining activities raises reasonable concerns about their impact on the marine environment (Giannopoulos, 2019). The protection of the ocean has emerged as a main challenge in today’s globalized world (Sala et al., 2018). However, while technologies for ocean exploitation have developed, legal frameworks have barely evolved (Radovich, 2016; Sala et al., 2018). 1.2. Rationale Despite the fact that the exploitation of marine energy and mineral resources is largely hidden from public view, policymakers and the public at large have in recent years become increasingly aware of the need to protect the ocean (United Nations General Assembly, 2012, 2013; European Commission, 2016). In particular, the concept of Blue Economy has been developed to show how improved ocean exploitation can lead to sustainable livelihoods and economic development while preserving the health of marine and coastal ecosystems (UNEP, FAO, IMO, UNDP, IUCN, 2012; Hunter, 2015; SmithGodfrey, 2016). Scientific aspects, including the impact on biodiversity (for example Niner et al., 2018; Van Dover et al., 2017) and the management of environmental impacts (Sala et al., 2018) have already been explored. However, there are surprisingly, to date, few papers stressing the need for an improved legal framework for ocean exploitation. A few articles concern the need for an international legal framework for the protection of the ocean (Gavouneli, 2016), the need for better regulation of offshore renewable energy activities (Galea, 2018) and offshore oil and gas activities (Radovich, 2016), the need for regulation of deep sea mining (Langevad, 1981; Van Dover, 2011) and the need for the creation of a legal regime for biodiversity in this area (Millicay, 2007). A few unpublished PhD theses have been written on this subject (Bonis, 2013; Darson, 2015), but they only concern exploitation of either energy resources or mineral resources and focus only on one piece of legislation. Therefore, the current legal frameworks regarding the exploitation of marine energy and mineral resources present important gaps. This research aims at filling them by adopting a global approach to the subject. For (Kiss, 1988, p. 13), “[I]f the environment is indivisible, that is particularly true for the marine environment for obvious reasons: pollution of the sea can only be usefully combated at the international level”. Indeed, the protection of the ocean needs a general approach. Improving the exploitation of marine energy

Marine energy and mineral resources 25 and mineral resources could help address many other global sustainability challenges, such as climate change, poverty reduction and food and resource security (Mendler de Suarez et al., 2014). We should therefore aim for the sustainable exploitation of marine energy and mineral resources. For (Turner, Pearce and Bateman, 1994), to achieve sustainable development, it is necessary to achieve sustainable use and management of natural resources and human knowledge, to maintain the major natural balances, and to control energy and save non-renewable resources. Thus sustainable exploitation would consist in the rational exploitation of the ocean that meets our present needs without preventing future generations from meeting theirs. The aim is to implement legislation that allows for sound and sustainable management of the oceans. The United Nations (no date) reminds us that “sustainably and transparently managed natural resources can be the engine for economic well-being and a basis for stable and peaceful societies”. As (Collier, 2010, p. 3) points out, “[N]ature has the potential to lead the majority of [developing] countries to prosperity” when it is transformed into an asset. However, nature is vulnerable, and humanity, which depends on it, is therefore also vulnerable. This is why it is important to regulate the exploitation of nature and its resources. 1.3. Research question This study aims at answering the following question: What international legal framework is needed to support the sustainable exploitation of marine energy and mineral resources?

2. Methods/approach A literature review of the exploitation of natural resources was conducted. A thorough analysis of legislation related to offshore mining and energy was undertaken. The search strategy consisted of an in-depth review of related legal documents and scientific literature, including publicly available reports, international agreements, a few national legislations and grey literature such as newspaper articles. UN and EU websites were identified and critically reviewed to understand the different legal frameworks and the reasons for their existence. The author attended various conferences on the exploitation of the ocean and read specialized newspaper articles. This was a comprehensive review of all available information sources. The aim of the review was to: • • •

identify limitations of previous work undertaken about the legal framework for the exploitation of marine energy and mineral resources; understand the various aspects that legislations can frame; start gathering potential solutions for recommendations.

26 Alix Willemez Only studies in the timeframe 1970–2020 were eligible for review in order to understand the current situation. Research was conducted in French, the author’s native language, and in English. Searches using iDiscover, Mendeley, Science Direct and Google Scholar were conducted. The study characteristics are as follows: •

•

Search terms included variations (e.g. plural, singular) on terms such as “national policies”, “ocean exploitation”, “offshore oil and gas”, “marine renewable energy”, “deep sea mining”, policy implementation”, “marine protected areas”. Only peer-reviewed published material was considered for the review, with the exception of three unpublished PhDs (Bonis, 2013; Darson, 2015; Willemez, 2018). Selected documents were published in French and English between 2070 and 2019. Results describing the legal framework for offshore oil and gas or renewable energy exploitation, deep sea mining and oil spills reparations were included in this review. Theoretical results about policymaking and implementation and the need for scientific data were also used as a baseline for analysis. Results concerning the scientific description of marine exploitation were used as a basis for understanding but excluded from the review. A few comparative results of national policies were used. Criteria for eligibility were that documents covered legal aspects of exploitation of the ocean or the environment at large.

This literature search generated articles on conceptualizing the need for an international policy on offshore oil and gas exploitation and for legislations on the liability of polluters, as well as the need to strengthen the current legislation on oil spills and to allow for better protection of fragile marine ecosystems.

3. Results 3.1. The need for a strengthened framework for ocean exploitation The first result showed that for an effective sustainable exploitation of marine energy and mineral resources, a strengthened legal framework needs to be adopted. According to (Giannopoulos, 2019, p. 5), “[T]he global international legal framework regulating some aspects of the environmental risks posed by offshore energy production stands out as being largely sectoral and recommendatory in nature”, in part due to the vague wording of international agreements. Articles 2, 77, 56 and 153 of the UNCLOS allows States, companies and international organizations to explore and exploit the resources of the different parts of the ocean (UN, 1982). However, this impacts the marine environment, and, to reduce it, Article 192 of the UNCLOS provides the obligation to exercise due diligence in preventing, reducing or controlling marine environmental pollution

Marine energy and mineral resources 27 from activities within their jurisdiction, and Article 193 of the UNCLOS clearly states, “States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment”. It is merely an obligation of conduct that States’ obligation to take all appropriate measures to prevent environmental harm requires states to meet the standard of due diligence. Some, such as the New Zealand Parliament (2012), have established a system for classifying activities related to marine resources, as well as marine protected areas. However, one of the difficulties is the absence or poor enforcement of these rules, particularly in developing countries, which lack surveillance vessels and police authorities (Lily, 2016; Willemez, 2018). Furthermore, in the event of an accident, states and companies may be held liable for damage to the environment. However, national rules are unequal and often poorly applied in developing countries (Lily, 2016). UNCLOS is complemented by an array of global and regional environmental treaties which further detail this evasive due diligence obligation to protect the marine environment from risks related to offshore activities (Willemez, 2018; Giannopoulos, 2019). 3.2. Focus on offshore oil and gas exploitation A particular aspect of this flexible legal framework is the lack of regulation for offshore oil and gas exploitation at the international level (Giannopoulos, 2019) and a discrepancy at the national level (Bankes et al., 2019). At the international level, there is no legislation on the exploitation of offshore oil and gas resources (Radovich, 2016). These gaps have gradually led to the development of regional instruments, but none of them concerns solely oil and gas (Cordes et al., 2016), and they also differ greatly from one region to another (Rochette and Wright, 2015); some are binding while others are not. Indeed, Rochette and Wright (2015) regret that there is no coordination and/or sharing of experience between the different regions. National legislations regulating offshore oil and gas development vary considerably from one country to another and even sometimes from one federal state to another (Gibbs, 1987; Techera and Chandler, 2015; Vann, 2016; Willemez, 2018). Some national laws cover all stages of the platform’s life cycle, from exploration to dismantling, while others are limited to the production phase; some address the subject of environmental impact while others tend to facilitate the development of offshore activities (Rochette and Wright, 2015). In addition, as previously mentioned, some laws are better enforced than others. In particular, as Mason (2003) states: “Oil pollution harm to collective ecological interests represents a key challenge to the liability framework” because the liability regime is restricted by a narrow definition of damage and national boundaries of entitlement. The 2010 Deepwater Horizon accident led to a redefinition and readjustment of practices, organizations and regulations concerning offshore oil exploitation

28 Alix Willemez (Gordon, 2013; Grad, 2017). However, in 1969, the explosion of an offshore oil well off Santa Barbara in California had already raised awareness on the part of American authorities (Grad, 2017). At the time, it was the largest oil spill in American waters. The U.S. Government (1969) then adopted the National Environmental Protection Act which requires environmental impact assessments to be prepared before any offshore oil project begins. In addition, the California State Land Commission then imposed a three-year moratorium on all new drilling in California waters (Grad, 2017). Today, there are 19 oil and gas leases in these waters (California State Lands Commission, 2020). It is therefore worrying that these serious accidents have had little impact on American legislation. In addition, in 2019, the Trump administration revised the safety rules related to offshore oil exploitation in order to make them more flexible (Lefebvre and Wolff, 2019). Nevertheless, Deepwater has the merit of having increased the penalties for subsequent oil spills from $7 to $48 per spilled barrel (Vecchi and Hecker, 2014) (see Annex A). It is therefore essential to increase the administrative and financial penalties for polluters at sea. Legislators must ask themselves how they wish to define the scope of the cleaning: is the objective to return to the conditions prior to the accident or to accept pollution, even partial? Furthermore, following the Deepwater Horizon accident, the European Union decided in 2011 to introduce new regulations to reduce the risk of major platform accidents. This is how the directive on the safety of offshore oil and gas operations (European Parliament and European Council, 2013) was adopted. Its objective is to reduce the risk of a major accident in the offshore oil and gas sector in EU waters and to limit the consequences of such an accident should it nevertheless occur. Other specific international instruments also exist, such as the MARPOL Convention (IMO, 1973), which only concerns marine pollution from ships and the International Convention on Oil Pollution Preparedness, Response and Cooperation (IMO, 1990). It requires industrialized countries to put in place a structure and a national response plan to deal with ship-source oil spills at sea. This Convention applies only to ships carrying oil from the coast to the oil platform and to the latter when it is in motion. It therefore does not apply to the explosion of an offshore oil well. Nevertheless, the latter, ratified by 109 countries, establishes a liability regime based on the application of uniform rules. It should be noted that international civil law procedures often take a long time to complete because of the major differences between countries’ legal systems (Balas et al., 2009). This convention therefore has the merit of allowing a rapid procedure. This liability is strict and applies without fault, except in cases of force majeure. As a result, the Convention establishes a system of compulsory insurance for shipowners. If the cost of the damage exceeds the amount provided for under this insurance, a compensation fund, the International Oil Pollution Compensation Fund (IOPCF, 1992), is added. The latter covers the costs of clean-up operations and compensates victims, such as fishers and the tourism industry (IOPCF, 2018b). Oil-importing countries contribute to this fund, depending on the volume of oil imported (Kontovas, Psaraftis and Ventikos, 2010). The Convention thus creates

Marine energy and mineral resources 29 legal certainty, and the IOPC Fund ensures that victims are compensated for the costs of clean-up, property damage, economic loss and reinstatement of the environment (IOPCF, 2018a). The Convention and the IOPCF combine a system of polluter liability and a victim compensation fund. However, these two tools only concern pollution caused by spills from oil tankers, and the compensation ceiling appears too low in view of the considerable economic and environmental impacts of recent maritime disasters (Spence, 2010; Vincent, 2011). Yet they have the advantage of quickly compensating victims who would otherwise have to face very long procedures (Vincent, 2011). Yet there is still no international convention on fighting oil pollution from offshore oil and mineral exploitation. The Convention on Liability for Oil Pollution Damage (IMO, 1969) signed by only six States, has never entered into force. A transitional solution could be to introduce new regulations involving state liability, which means that governments would compensate for damage caused by maritime pollution and could then turn against private companies. Indeed, some analysts point out that it is States that authorize exploration and exploitation activities at sea. Still, such a solution would be difficult to apply. For the time being, States are only liable if they have failed to adopt adequate laws and regulations or if they have failed to fulfil their supervisory obligations. Today, there is only one example of strict State liability: the Convention on International Liability for Damage Caused by Space Objects (United Nations, 1972). Thus its Article 2 provides that the launching State of a space object has absolute responsibility to pay compensation for damage caused by its object to the earth’s surface or to aircraft in flight. Few legislations are related to the protection of the ocean from pollution. In the case of transboundary pollution, the uniform international regime of civil liability allows either an action before the courts of a foreign State or an amicable agreement or arbitration procedure between the State of residence and the polluting State. For now, the Barcelona Convention (1976) is an important document for the protection of the oceans. It is complemented by six protocols on pollution by dumping from ships and aircraft, cooperation in the fight against pollution by oil and harmful substances, protection against pollution from land-based sources, specially protected areas and biological diversity, cooperation in the prevention of pollution by ships and, finally, integrated coastal zone management. The agreement calls for numerous programmes and action plans to implement its application. It is essential to prevent rather than to repair damage. States must therefore continue to adopt regulations requiring high safety standards. For the time being, they must impose severe sanctions on polluters, based on the polluter-pays principle. This principle was adopted by the Organisation for Economic Co-operation and Development (OECD), according to which the costs resulting from pollution prevention, reduction and control measures must be borne by the polluter (OECD, 1981). In addition, sanctions such as the withdrawal of operating

30 Alix Willemez licences can be envisaged. The International Tribunal for the Law of the Sea (2011) provides that the liability of sponsoring States results from a breach by them of their obligations and is incurred in the event of damage caused by the sponsored contractor. There must be a causal link between the failure of the sponsoring State to fulfil its obligations and the damage caused and such a link cannot be presumed. This liability may include, for example, the costs of cleaning up pollution caused by a spill or by equipment failure. The coastal State is primarily responsible for activities at sea. These include the precautionary approach, best environmental practices and impact assessment on the environment. Article 221 of the UNCLOS recalls that under customary and conventional international law, coastal States may protect themselves beyond the territorial sea and therefore on the high seas, against a threat of pollution resulting from a marine accident by “measures proportionate to the damage they have actually suffered or are threatened with” (UN, 1982). In the event of non-compliance with the terms of the permit, enforcement action must be taken against companies. They will have to cover criminal and civil actions and be heavy enough for them not to simply include them in their budgets, without really caring. In addition, they must be planned and proportionate, depending on the seriousness or persistence of the violation. However, companies are currently not always held liable for the pollution they cause at sea. 3.3. The burgeoning of corporate liability Most international treaties and conventions dedicated to environmental protection are instruments intended for States and not for multinational companies. In the case of ocean exploitation, some States lack technical expertise and delegate these operations to a company. Their relationship must then be regulated by international law or domestic legal instruments (Percival, 2011; Park, 2013). Nevertheless, it is sometimes difficult to enforce international treaties since companies are not party to them. In the case of exploitation of marine energy and mineral resources, companies were not always held fully liable for their actions (Gordon, 2013; Radovich, 2016). This is why, in 2015, a group of lawyers and magistrates adopted the Oslo Principles on Global Obligations in Relation to Climate Change (Oslo Group of Experts, 2015) in which they list the legal arguments to facilitate recourse against States and companies when they emit significant quantities of greenhouse gases. It is also interesting to note the holding in October 2016 of a so-called Monsanto court in The Hague (Monsanto Tribunal, 2016). It was a citizen’s trial whose purpose was to alert public opinion and advance the rule of law. Five professional magistrates interviewed some 30 witnesses, experts, victims and lawyers to decide whether the actions of the American company Monsanto, specializing in agricultural

Marine energy and mineral resources 31 biotechnologies, were contrary to certain fundamental rights. Monsanto refused to present its arguments, arguing that this court was both judge and party. Following the hearings, the judges proposed that the crime of ecocide be included in international criminal law as a new category of international crimes. Indeed, until now, only natural persons can be held liable before the International Criminal Court. 3.4. The legal recognition of environmental crime To ensure that exploitation is sustainable, liability should be investigated. Nevertheless, most remedies available mainly protect property rights and to a lesser extent personal injury and derivative economic loss. Therefore, liability provided for by the law currently seems inadequate. Recently, a significant step forward was the recognition of ecological damage. It was the Convention on Biological Diversity (CBD, 1992) which first recognized that the protection of biodiversity is a “common concern of humanity” (Chelsea, Pierson and Ratté, 2016). Despite this statement, the Federation of American Scientists recalls that “environmental crime is one of the most lucrative and dynamic areas of international criminal activity” (Federation of American Scientists, 2000). Environmental protection is a recent concern for legislators. Thus, the 1957 Treaty of Rome (EC, 1957) did not provide for community action in environmental matters, with the exception of the conservation of fisheries resources. It was not until the ADBHU (Association de défense des brûleurs d’huiles usagées) judgment of 7 February 1985 (CJEC, 1985) that the Court of Justice recognized that environmental protection was one of the essential objectives of the European Community. Two years later, the Single Act (EC, 1986) introduced the concept of environmental protection into the Treaty of Rome and the necessary legal bases for the adoption of acts in this field. This was followed, three years later, by the creation of the European Environment Agency (EU, 1990; European Parliament, 2019). Article 2 of the former Treaty on European Union – current article 3.3 – (EU, 1992) did not directly mention environmental protection but stated that one of the objectives of the EU was “to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development.” Article 174 – current article 191(2) TEU – defined the objectives and principles of EU environmental policy. Therefore, in recent years, we have seen the adoption of legislation protecting the environment, based on the human rights model. In France, for example, the Environmental Charter (Conseil Constitutionnel, 2004), which affirms the fundamental rights and duties of all people with regard to environmental protection, was incorporated into the constitutionality block in 2004. At the same time, it can also be seen that the concept of environmental crime has gained importance in common law and European law since the 1970s (Adler and Morris, 2008). Nevertheless, criminal law was generally inadequate to take into account the rights of future generations or the environment. In addition, sanctions (mainly fines) had little deterrent effect. These costs, as well as legal fees, were generally included in the companies’ business plans. Many unscrupulous

32 Alix Willemez companies have not hesitated to relocate their activities to countries with less stringent legislation. This is why Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (European Parliament and the Council of the European Union, 2008) was adopted. It requires Member States to provide in their national legislation for criminal sanctions for serious violations of the provisions of community law on environmental protection. One goal was to prevent environmental offenders from taking advantage of the disparities between the criminal laws of the Member States. However, this directive does not create obligations regarding the application of such sanctions or any other repressive system, and monitoring of the implementation is difficult. Indeed, the Commission monitors the application of Union law in the Member States, but its resources are limited. The limitations of liability provided by the International Regime of Civil Liability and Compensation for Oil Pollution Damage have prevented the polluters from fully compensating injured parties for the damage the spill produced. As a result of this increase in environmental protection, the concepts of ecological damage and the crime of ecological terrorism have gradually emerged. For example, in 2016, the Spanish Supreme Court proclaimed the existence of an environmental crime and extended the application of the polluter-pays principle (Caballero and Soto-Oñate, 2017). Nevertheless, it should be recalled that in the United States, the Oil Pollution Act requires the person responsible to take charge of the pure ecological damage caused by the oil spill, i.e. to repair the loss of natural resources (US Government, 1990). It must also establish an environmental rehabilitation plan to restore ecosystems and natural services. In France, environmental damage represents an infringement of a collective right and does not fit into the traditional notion of damage provided for in Article 1382 of the Civil Code (French Government, 2016), which requires a personal nature that does not allow action to be taken in favour of the environment. However, the Environmental Charter states in its third recital that “the environment is the common heritage of human beings” (Conseil Constitutionnel, 2004). In 2004, the European Commission issued Directive 2004/35/CE, which extended liability that usually refers to personal injuries and private property to damage to the air, water, land, protected species, and natural resources (European, 2004). However, there seem to exist barriers to building up this coherent and harmonized liability system (Feess, Muehlheusser and Wohlschlegel, 2009; Pouikli, 2016). Two questions then arose: • •

What is ecological damage? There are two types of ecological damage: pure damage and secondary damage. Who has the right to act? This is the admissibility of the action for compensation.

Pure ecological damage is ecological damage in the strict sense, concerning environmental damage. This is complementary to secondary ecological damage, which takes into consideration the property, moral and physical damage to persons.

Marine energy and mineral resources 33 The premises of ecological damage can be found in the Convention on the Conservation of European Wildlife and Natural Habitats, signed in Bern in 1979, Article 194(5) of the UNCLOS, as well as in the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed in Lugano in 1993 and in Principle 3 of the International Law Commission’s Draft Principles on the Distribution of Losses in the Event of Transboundary Harm from Hazardous Activities of 2006. As we are only at the dawn of legal developments in the exploitation of the ocean, we will see the emergence of new concepts. Thus several Courts of Justice have recognized the status of natural sites as living entities with their own legal identities and all the rights and duties attached (O’donnell and Talbot-Jones, 2018). In February 2018 and for the first time, ICJ judges declared themselves competent to assess the extent of environmental damage in the Nicaragua v. Costa Rica judgment (ICJ, 2018). For the time being, this has not had any effect, but it is possible to consider the application of such a principle for marine protected areas, for example. Another important action to reach sustainable exploitation of ocean resources is the protection of vast areas of ocean. 3.5. The need for marine parks and protected areas Without going so far as (Wilson, 2017) who demands that half of the planet be devoted to nature in order to ensure our own survival, it is, however, crucial to protect some valuable parts of the ocean. The UN Sustainable Development Goal 14 aims for 10% ocean conservation in marine protected areas (MPAs) by 2020 (UN, 2015). In MPAs, human activity is restricted for a conservation purpose. However, currently only 3.6% of the ocean is MPA, and only 2% is strongly or fully protected (Sala et al., 2018). Nevertheless, one of the most important work in progress for the international community is to establish rules on the high seas for the conservation and sustainable use of marine biodiversity. In 2012, through Article 162 of the Final Declaration of the Rio +20 Conference (UN, 2012), the international community committed itself “to address, on an urgent basis . . . the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under the UNCLOS.” Indeed, all States have the right of free access to the high seas because it is an international space where there is no internationally competent authority to enforce rules. The Biodiversity Beyond National Jurisdiction (BBNJ) (UN, 2020), a working group under the aegis of the United Nations, has been negotiating on four main themes: • • • •

marine genetic resources and the sharing of the benefits of their exploitation the creation of MPAs on the high seas the implementation of an environmental impact study prior to any exploration or shipping route creation project inter-State cooperation

34 Alix Willemez Following a two-year Preparatory Committee process, the United Nations General Assembly convened an intergovernmental conference to develop an international legally binding instrument on marine biodiversity in areas beyond national jurisdiction (UN, 2020). This instrument covers different issues such as marine genetic resources; area-based management tools, including marine protected areas; environmental impact assessments; and capacity building and technology transfer. Nevertheless, not much seems to have been written on environmental impact assessments in areas beyond national jurisdictions. Agarwal (2015) and Narula (2016) consider that there are still many legal and policy gaps in this agreement. Finally, Harden-Davies et al. (2020) hope that the recent recognition of nature’s rights can inform the BBNJ agreement.

4. Conclusions This article concludes that, at the international level, the sustainable exploitation of energy and mineral resources of the ocean can be supported through: 1 2 3

4

5 6 7 8

the adoption of a comprehensive convention on marine energy and mining activities (it is particularly urgent to regulate at the international level the activity of offshore oil rigs); the development or strengthening of regional agreements on the environmental security of offshore oil and gas activities; the adaptation of the UNCLOS to current scientific and technical knowledge and extending it for the protection of the marine environment in its globality, on the model of the Intergovernmental Conference on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction; the extension of the CLC/IOPCF Conventions to the exploitation of marine mineral and energy resources and raising the ceiling of the IOPC Fund (failing to promote the adoption of an international convention on liability and compensation for pollution damage resulting from offshore exploitation activities, it will be necessary to incorporate liability and compensation provisions in existing and future regional agreements); the reinforcement of corporate liability in case of marine pollution; the acknowledgement of the legal existence of ecological crime and the effective punishment of the authors of crimes of ecological damage and ecological terrorism; the strengthening of the technical and financial capacities of developing countries to apply their legislation and exercise control over offshore exploration and exploitation activities; the development and strengthening of marine protected areas.

In the field of ocean protection, as Tassin (2017) points out, it is now essential to “rethink governance and involve all public–private actors in the future of the oceans.”

Marine energy and mineral resources 35

Acknowledgements The valuable comments and helpful input of an anonymous reviewer are hearty acknowledged.

Note 1 PhD, Sustainable Development Consultant, UN expert for ocean and energy policies.

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Marine energy and mineral resources 37 Grad, S. (2017) ‘The Environmental Disaster that Changed California and Started the Movement Against Offshore Oil Drilling’, Los Angeles Times. Harden-Davies, H. et al. (2020) ‘Rights of Nature: Perspectives for Global Ocean Stewardship’, Marine Policy, 122, Show Less. https://doi.org/10.1016/j.marpol.2020.104059. Hunter, D. (2015) ‘The Blue Economy’, Sea Technology. ICJ (2018) Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua). Available at: https://www.icj-cij.org/en/case/150. IMO (1969) International Convention on Civil Liability for Oil Pollution Damage (CLC). Available at: www.imo.org/en/About/Conventions/ListOfConventions/Pages/Inter national-Convention-on-Civil-Liability-for-Oil-Pollution-Damage-%28CLC%29.aspx. IMO (1973) International Convention for the Prevention of Pollution from Ships (MARPOL). Available at: www.imo.org/en/About/Conventions/ListOfConventions/Pages/ International-Convention-for-the-Prevention-of-Pollution-from-Ships-(MARPOL).aspx. IMO (1990) International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC). Available at: www.imo.org/en/About/Conventions/ListOf Conventions/Pages/International-Convention-on-Oil-Pollution-Preparedness,Response-and-Co-operation-(OPRC).aspx. International Tribunal for the Law of the Sea (2011) Advisory Opinion. Available at: https:// www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/17_adv_op_010211_en.pdf. IOPCF (1992) The International Oil Pollution Compensation Funds. Available at: https:// www.iopcfunds.org/. IOPCF (2018a) Claim Form. Available at: https://www.iopcfunds.org/wp-content/ uploads/2018/12/claims_form_e.pdf. IOPCF (2018b) Guidelines for Presenting Claims for Environmental Damage. Available at: https://iopcfunds.org/wp-content/uploads/2018/12/IOPC_Environmental_Guidelines_ ENGLISH_2018_WEB_01.pdf. Kiss, A. (1988) ‘La protection de la mer dans la Convention des Nations Unies sur le Droit de la Mer’, in Collection Droit et Economie de l’environnement, E. E. (ed.) Actes du colloque de novembre 1987 de la Société Française pour le Droit de l’Environnement. Paris: Société Française pour le Droit de l’Environnement, p. 13. Kontovas, C. A., Psaraftis, H. N. and Ventikos, N. P. (2010) ‘An Empirical Analysis of IOPCF Oil Spill Cost Data’, Marine Pollution Bulletin, 60(9), 1455–1466. https://doi. org/10.1016/j.marpolbul.2010.05.010. Langevad, E. J. (1981) ‘Production Policy for the Deep Sea Mineral Resources’, Marine Policy, 5(3), 264–267. https://doi.org/10.1016/0308-597X(81)90055-5. Lefebvre, B. and Wolff, E. (2019) ‘Trump Erases Offshore Drilling Rules Enacted after BP Oil Spill’, Politico. Available at: https://www.politico.com/story/2019/05/02/ offshore-drilling-rules-1404098. Lily, H. (2016) ‘A Regional Deep-sea Minerals Treaty for the Pacific Islands?’, Marine Policy, 70, 220–226. https://doi.org/10.1016/j.marpol.2016.04.005. Mason, M. (2003) ‘Civil Liability for Oil Pollution Damage: Examining the Evolving Scope for Environmental Compensation in the International Regime’, Marine Policy, 27(1), 1–12. https://doi.org/10.1016/S0308-597X(02)00051-9. Mendler de Suarez, J. et al. (2014) ‘Ensuring Survival: Oceans, Climate and Security’, Ocean and Coastal Management, 90, 27–37. https://doi.org/10.1016/j.ocecoaman.2013.08.007. Millicay, F. (2007) ‘A Legal Regime for the Biodiversity of the Area’, Center for Oceans Law and Policy, 739–850. https://doi.org/10.1163/ej.9789004162556.i-850.199. Monsanto Tribunal (2016) Monsanto Civil Trial. Available at: www.monsanto-tribunal. org/Conclusions.

38 Alix Willemez Narula, K. (2016) ‘Ocean Governance: Strengthening the Legal Framework for Conservation of Marine Biological Diversity Beyond Areas of National Jurisdiction’, Maritime Affairs. Routledge, 12(1), 65–78. https://doi.org/10.1080/09733159.2016.1181394. New Zealand Parliament (2012) New Zealand Exclusive Economic Zone and Continental Shelf (Environmental effects) Act. Available at: www.legislation.govt.nz/act/ public/2012/0072/latest/DLM3955428.html. Niner, H. J. et al. (2018) ‘Deep-sea Mining with No Net Loss of Biodiversity-an Impossible Aim’, Frontiers in Marine Science. https://doi.org/10.3389/fmars.2018. 00053. O’donnell, E. L. and Talbot-Jones, J. (2018) ‘Creating Legal Rights for Rivers: Lessons from Australia, New Zealand, and India’, Ecology and Society, 23(1), 7. https://doi. org/10.5751/ES-09854-230107. OECD (1981) The Polluter-pays Principle- OECD Analyses and Recommendations. Available at: www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=OCDE/ GD(92)81&docLanguage=En. Oslo Group of Experts (2015) Oslo Principles on Global Obligations in Relation to Climate Change. Available at: https://globaljustice.yale.edu/sites/default/files/files/OsloPrinciples.pdf. Park, P. (2013) International Law for Energy and the Environment, Second Edition. Boca Raton: CRC Press. https://doi.org/10.1201/b13852. Percival, R. V. (2011) ‘Global Law and the Environment’, Washington Law Review, 86, 579–634. Pigenet, Y. (2014) ‘Exploiter les profondeurs de l’océan’, CNRS. Available at: https:// lejournal.cnrs.fr/articles/exploiter-les-profondeurs-de-locean. Pouikli, K. C. (2016) ‘Overview of the Implementation of the Directive 2004/35/EC on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage at European Level’, Desalination and Water Treatment, 57(25), 11520– 11527. https://doi.org/10.1080/19443994.2015.1101620. Radovich, V. S. (2016) ‘Oil and Gas in the Ocean-international Environmental Law and Policy’, in OCEANS 2016 – Shanghai. Shanghai: IEEE. https://doi.org/10.1109/ OCEANSAP.2016.7485581. Ramirez-Llodra, E. et al. (2010) ‘Deep, Diverse and Definitely Different: Unique Attributes of the World’s Largest Ecosystem’, Biogeosciences, 7(9), 2851–2899. https://doi. org/10.5194/bg-7-2851-2010. Ray, C. (1970) ‘Ecology, Law, and the “Marine Revolution”’, Biological Conservation, 3(1), 7–17. https://doi.org/10.1016/0006-3207(70)90051-0. Rochette, J. and Wright, G. (2015) ‘Strengthening the International Regulation of Offshore Oil and Gas Activities’, in GSDR. Available at: https://sustainabledevelopment.un.org/ content/documents/5779Brief offshore GSDR_rev.pdf. Sala, E. et al. (2018) ‘Assessing Real Progress Towards Effective Ocean Protection’, Marine Policy. Elsevier Ltd, 91, 11–13. https://doi.org/10.1016/j.marpol.2018.02.004. Smith-Godfrey, S. (2016) ‘Defining the Blue Economy’, Maritime Affairs. https://doi.org/ 10.1080/09733159.2016.1175131. Spence, D. B. (2010) ‘Corporate Social Responsibility in the Oil and Gas Industry’, Chicago Kent Law Review, 86(1). Available at: https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3776&context=cklawreview. Takaya, Y. et al. (2018) ‘The Tremendous Potential of Deep-sea Mud as a Source of Rare-earth Elements’, Scientific Reports. Nature Publishing Group, 8(1). https://doi. org/10.1038/s41598-018-23948-5. Tassin, V. (2017) ‘Presentation’, in Assises de l’économie de la mer.

Marine energy and mineral resources 39 Techera, E. J. and Chandler, J. (2015) ‘Offshore Installations, Decommissioning and Artificial Reefs: Do Current Legal Frameworks Best Serve the Marine Environment?’, Marine Policy, 59, 53–60. https://doi.org/10.1016/j.marpol.2015.04.021. Turner, K., Pearce, D. W. and Bateman, I. (1994) Environmental Economics: An Elementary Introduction. New York: Harverster Wheatsheaf. UN (1982) UNCLOS. UN (2012) ‘United Nations Conference on Sustainable Development, Rio+20’, in Rio de Janeiro, Brasil. Available at: https://sustainabledevelopment.un.org/rio20.html (Accessed: 23 January 2019). UN (2015) SDG 14 Life Below Water. Available at: https://www.un.org/sustainable development/oceans/. UN (2016) World Ocean Assessment. Available at: https://www.un.org/Depts/los/global_ reporting/WOA_RegProcess.htm. UN (2019) World Population Prospects 2019: Highlights. Available at: https://population. un.org/wpp/Publications/Files/WPP2019_Highlights.pdf. UN (2020) Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction. Available at: https://www.un.org/bbnj/. UNEP, FAO, IMO, UNDP, IUCN, G.-A. (2012) Blue Economy Concept Paper. Available at: http://sustainabledevelopment.un.org/index.php?page=view&nr=603&type= 13&menu=203. United Nations (1972) Convention on International Liability for Damage Caused by Space Objects. Available at: www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introliabilityconvention.html. United Nations (no date) Rule of Law and Development, 2020. Available at: https://www. un.org/ruleoflaw/rule-of-law-and-development/. United Nations General Assembly (2012) The Future We Want. New York: UNGA. Available at: www.un.org/ga/search/view_doc.asp?symbol=A/RES/66/288&Lang=E. United Nations General Assembly (2013) Resolution A/RES/68/70. Available at: www. un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/70. US Government (1969) National Environmental Policy Act. Available at: https://www.epa. gov/nepa. US Government (1990) Oil Pollution Act. Van Dover, C. L. (2011) ‘Tighten Regulations on Deep-sea Mining’, Nature, 470, 31–33. https://doi.org/10.1038/470031a. Van Dover, C. L. et al. (2017) ‘Biodiversity Loss from Deep-sea Mining’, Nature Geoscience, 10, 464–465. https://doi.org/10.1038/ngeo2983. Vann, A. (2016) ‘Offshore Oil and Gas Development: Legal Framework’, in Federal Income From Crude Oil and Natural Gas: Issues and Options. New York: Nova Science Publishers, Inc., pp. 85–114. Vecchi, C. and Hecker, J.-X. (2014) Pétrole offshore en Arctique : doit-on geler les investissements? Paris: Mirova. Vincent, R. (2011) ‘La marée noire dans le Golfe du Mexique : le temps du droit’, in La semaine juridique édition générale. Paris: La semaine juridique. Willemez, A. (2018) Exploitation durable des ressources énergétiques et minérales marines : aspects juridiques. Paris I Panthéon-Sorbonne. Available at: www.theses.fr/2018PA01D016. Wilson, E. (2017) Half-Earth: Our Planet’s Fight for Life. New York: Liveright. World Ocean Review (2016) State of the World Oceans- tome 1. Available at: https://www. unenvironment.org/resources/report/world-ocean-review-1-living-oceans-report-stateworlds-oceans.

40 Alix Willemez Annex A Amount of fines for oil spills following the Deepwater Horizon accident Operator

Year

Place

Thousands of barrels

Fine (M dollars)

Cost per barrel (k dollars/bbl)

BP (Deepwater Horizon) Conoco Philipps Chevron

2010 2011 2011

USA China Brazil

3200 3.3 3

21,000 M 158 M 110 M

7 48 37

Source: Vecchi and Hecker, 2014.

3

The legal dimension of soil protection and sustainable use of soils Irene Lucia Heuser1

1. Introduction Soils have been regarded as the neglected environmental media for a long time, and they still appear to be the ‘poor nephews’ of international environmental law, particularly in comparison to water and the atmosphere (Boer and Hannam 2015, pp. 1–13; Boer and Hannam 2003, pp. 149–163). This perception is changing since the UN General Assembly declared the year 2015 as the first International Year of Soils and on 25 September 2015 adopted the 2030 Agenda for Sustainable Development with a special Sustainable Development Goal (SDG) for life on land. The development on the international political stage and the corresponding legislation takes place in waves and has fluctuated a lot in recent years. In the current situation of the COVID-19 pandemic, the disadvantages of a world order that is primarily geared towards economic growth are more evident than ever, and many countries of the Global South are faced even more with enormous shortages of food and the need to get the most out of every acre of land. For decades, land resources have been degrading at an alarming pace, affecting sustainable development in all parts of the world. Even in the context of sustainable development, the focus on this environmental medium is not very common. This chapter investigates the question how the protection and sustainable use of soil is organized in terms of international environmental law. It focuses on the current and future regulations in this field, both regarding binding legal instruments and options for further developing these existing regimes, including progress made through major environmental conferences in the past decade and recent developments, including the land- and soilrelated aspects in the Agenda 2030.

1 Senior Legal Officer and Head of the Unit EU Policy, EU Law, Development Policy, Ministry for Europe of the State of Brandenburg, Germany, and Chair of the Specialist Group on Soils, Desertification and Sustainable Agriculture of the World Commission on Environmental Law of IUCN (International Union for the Conservation of Nature).

42

Irene Lucia Heuser

2. Challenges of soil protection The starting point for legal reflections would be to define and explain the context and scientific requirements for legislation in the field of the protection and sustainable use of soil and land: ‘Soil’ is a limited natural resource and the fundamental biological component of all of the world’s land. ‘Land’ in this chapter is defined as in Article 1 of the United Nations Convention to Combat Desertification (hereafter ‘UNCCD’; UN 1994) as ‘the terrestrial bio-productive system that comprises soil, vegetation, other biota, and the ecological and hydrological processes that operate within the system’. Soil is a very dynamic system which performs environmental, economic, social and cultural functions which are central to both human well-being as well as the health of the environment in general. It is a very complex and often undervalued element, playing a vital role in the Earth’s ecosystem, being the fundamental basis for terrestrial biodiversity and more broadly recognised as having an essential function in regulating the global climate. For centuries, soil functions were maintained without much difficulty. Around the beginning of the 20th century, problems began to arise when the pressure of development activities began to more seriously disrupt the ecological functions of the soil. Unfortunately, the way land and soil are currently used in the world is not sustainable. Global estimates of the total degraded area vary from less than 10 million km2 to over 60 million km2 (IPCC 2019, p. 89). At least a quarter of the world‘s land area is either highly degraded or undergoing high rates of degradation. The human-induced global change in the second half of the 20th century has led to a fundamental shift in the functioning of the soil and an increase in land and soil degradation, especially through the recent industrialized forms of agriculture. It is also known that degraded land has the effect of increasing the number of people in poverty in countries of the global south (Barbier and Hochard 2016). According to the UN, 2.6 billion people depend directly on agriculture, but 52% of the land used for agriculture is moderately or severely affected by soil degradation. The annual increase in the degraded land area has been estimated as 50,000–100,000 million km2/a (IPCC 2019, p. 89). More than a tenth of the earth’s land area is desertifying. The economic losses are about $400 billion a year worldwide (Futrell 2009, p. 10077f). Soil and land degradation are not just happening in Africa but occur in all parts of the terrestrial world and can take many forms. Globally, there is competition for land because it is a finite resource and because most of the highly productive land is already exploited by humans (IPCC 2019, p. 90). Soil is relevant for all species, humans, animals and plants, and is supplying the vast majority of the world’s food; therefore its preservation is also essential for food security. The global human population reached 7.7 billion at the end of 2019 and is projected to increase to nearly 9.8 billion people by 2050 (IPCC 2019, p. 88). With this population growth, the harvested yields must be increased by about 40% in order to maintain a food supply comparable to today’s (Blume et al. 2016, p. 5). The COVID-19 pandemic provides another illustration of the need for

Soil protection and sustainable use of soils 43 more sustainable food systems that work with and not against nature (Larbodière et al. 2020, p. viii). Soil is essentially (on human timescales) non-renewable (FAO 2015a), a finite resource, because its loss and degradation are not recoverable within a human lifespan: the degradation rates can be rapid, whereas the formation and regeneration processes are extremely slow. The potential of soils to recover after a disturbance (soil resilience) is a product of past and present soil management, correlates with the multiple soil functions and hence reflects the multifunctionality of the soil system. Consequently, soil resilience can serve as a bioindicator for soil sustainability. The previous use of the soil worldwide led to an endangerment of the various (in particular the natural) soil functions. Soil is a natural resource of common interest which is under increasing environmental pressure and is to be protected from degradation in its own right. The following reflections are based on the identification of mainly eight soil degradation processes and use a broad definition of the specific soil threats: They include the aspects of organic matter decline, soil biodiversity loss, soil contamination, soil sealing, soil compaction, soil erosion, salinization, and floods and landslides (Commission of the European Communities 2006). Soil variability is very high and enormous differences exist worldwide in its state both within individual profiles and between soils. These diverse conditions and needs should be considered as they require different and specific solutions.

3. Binding legal instruments on the international level Legislation must take these requirements into account and strive to maintain the soil functions and the structural integrity of soil which contributes to soil sustainability. In this context, the role of environmental law is to fight the causes of soil and land degradation and, especially, to influence people’s behaviour in order to change unsustainable soil and land management practices. Next to the binding legal instruments related to the protection and sustainable use of soils which will be analysed in this chapter in more detail, soft-law instruments can also contribute and be realized within a shorter time frame than conventions because they do not require ratification (Hannam and Boer 2002, p. 36ff). One example is the Revised World Soil Charter (FAO 2015b) which has been unanimously endorsed in 2015, coinciding with the International Year of Soils, by the Member States of FAO and which serves as a vehicle to promote and institutionalize sustainable soil management at all levels. This Charter, as well as other soft-law instruments, is not binding and could be regarded as a benchmark in order to measure how much progress has been made in consensus building for later treaties. In this context, I would also like to refer to the Global Soil Partnership of the Food and Agriculture Organization of the United Nations (FAO 2020), as well as to the FAO’s Voluntary Guidelines for Sustainable Soil Management (FAO 2017). Concerning binding international environmental law in relation to the protection and sustainable use of soils, the process started at the United Nations Conference on Environment and Development in Rio de Janeiro in 1992 and led to three legally binding agreements (known as the Rio Conventions) (IYSLP 2016, Boer et al. 2017, p. 49 ff.): the United Nations Framework Convention on Climate

44 Irene Lucia Heuser Change (UN 1992a), the Convention on Biological Diversity (UN 1992b), both signed in Rio in 1992, and the UN Convention to Combat Desertification which was adopted in Paris in 1994 (UN 1994). As the scope of application in environmental conventions is limited, this chapter will not deal with other binding instruments or with a regional model law, the Alpine Convention Soil Protection Protocol (AC-CoP 1998), which is the only binding legal instrument in the world specifically for the protection of soil. 3.1. Convention on Biological Diversity The Convention on Biological Diversity (CBD), with currently 195 contracting parties (UN 1992b), and the Aichi Targets under the CBD (UN 2010) in some way deal with the protection and sustainable use of soils: The CBD aims at ‘the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources’. The term ‘biological diversity’ is defined in Article 2 as ‘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.’ Due to the inclusion of ‘terrestrial ecosystems’, all soil functions fall within the objectives of the CBD. Therefore, the scope of application of the CBD is broad enough for dealing with all relevant soil threats (Boer and Hannam 2003, p. 64). The national obligations according to the CBD are not very specific. In addition to the obligation for international cooperation (Article 5), the Contracting Parties must establish national strategies, plans or programmes for the conservation and sustainable use of biological diversity, and these must encompass all necessary measures (Article 6). Moreover, Contracting Parties ‘shall, as far as possible and as appropriate’ put into effect ‘in-situ’ measures, including a system of protected areas, and the rehabilitation of degraded ecosystems [Article 8 (a) and (f)]. According to Article 14 (a), an environmental impact assessment shall be conducted if projects are likely to have significant adverse effects on biological diversity; these effects could include effects on soil health and productivity. The CBD text does not contain specific provisions with regard to the protection and sustainable use of soils (Boer and Hannam 2003, p. 154), although the terrestrial ecosystems and its living organisms are included. However, soil aspects are reflected in several programmes of the CBD: among others, agricultural biodiversity, dry and sub-humid lands biodiversity and forest biodiversity. In addition, the Strategic Plan for Biodiversity, adopted in 2010 contains 20 ‘non-binding’ Aichi Targets (UN 2010). Several of the Aichi Targets clearly involve soil issues, for example Goal B, which requires parties to ‘reduce the direct pressures on biodiversity and promote sustainable use’, while Target 7 under this Goal states: ‘By 2020 areas under agriculture, aquaculture and forestry are managed sustainably, ensuring conservation of biodiversity’. Although the Aichi Targets refer to soil aspects (e.g. soil fertility and erosion control) and therefore soil protection can be realized on the basis of the CBD, neither instrument places

Soil protection and sustainable use of soils 45 legally binding obligations on States Parties, and there is still a lack of implementation with regard to soil issues which hopefully will change in the future. The CBD pursues an ecosystem approach including strategic aspects of integrated management of land. In addition, with the growing importance of agrobiodiversity within the context of the CBD, the sustainability of soils will become an increasingly important subject for debate. In 2002, the COP to the CBD decided ‘to establish an International Initiative for the Conservation and Sustainable Use of Soil Biodiversity’ (UN 2002, para. 13) as a cross-cutting initiative, regarding soil biodiversity as a provider of essential ecosystem goods and services. This initiative, coordinated by FAO and CBD, restores hope that soil issues won’t be overshadowed by other biodiversity issues in the future. Although the CBD does not include soil-specific obligations, the objectives of the convention would enable the comprehensive regulation of all aspects of soil. 3.2. United Nations Framework Convention on Climate Change The direct role of soil in regulating the global climate is substantial and quite complex. Land degradation is both affected by climate change and contributes to it (IPBES 2018, p. XXII). The most prominent role of soil is in regulating the climate as a part of the carbon cycle. Soil is the major global carbon ‘sink’, it constitutes the largest surface carbon pool. Soil quality has a crucial impact on the carbon absorption capacity. CO2 is a key greenhouse gas, and its increased emission contributes considerably to global warming and climate change. The global carbon cycle includes a significant carbon stock in terrestrial soils. Global land and soil degradation is strongly linked to the depletion of this stock (Larbodière et al. 2020, p. 41). It has now been proven that soils, and agricultural soils in particular, could be useful in climate mitigation, especially through offsetting human emissions of greenhouse gases. Changes in management practice have been shown to increase carbon sequestration and to reduce the emission of greenhouse gases. Accurately monitoring the effectiveness of soil management techniques, though, remains difficult. Article 2 of the United Nations Framework Convention on Climate Change 1992 (UNFCCC, UN 1992a) deals with the ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’. The UNFCCC has been almost universally adopted, with 197 Contracting Parties. A soil-related obligation is found in Article 3.3, which requests the Contracting Parties to ‘cover all relevant sources, sinks and reservoirs of greenhouse gases’ in their national climate change policies. Soils are the world’s second largest natural reservoir of carbon after the oceans and therefore ‘reservoirs’ within the meaning of the UNFCCC. They could also be regarded as ‘sinks’ if, for example through the rehabilitation of wetlands, additional carbon is sequestered. The convention stresses the fundamental role of organic matter decline. The process of NAMA (Nationally Appropriate Mitigation Action) emerged in 2007 under the Bali Action Plan, and it can be used to protect soils. The Parties also have the obligation to establish national inventories

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and report it to the Conference of the Parties and to formulate and implement programmes with the required measures (Article 4 UNFCCC). The 26th session of the Conference of the Parties (COP 26) to the UNFCCC was planned to take place in November 2020, in Glasgow, UK, but was postponed into the year 2021 due to the COVID-19 pandemic. The Kyoto Protocol (UN 1997) adopted in 1997 (coming into force in 2005) determined mandatory emission reduction targets for developed countries for the first time and highlights that soil is a major carbon store which must be protected and increased where possible. According to Article 2, developed countries have an obligation to protect and enhance sinks and reservoirs. In 2011, Contracting Parties decided that both the drainage and the restoration of wetlands by waterlogging should be included as land use change in the calculation of emission reduction by developed countries according to Article 3.4 of the Kyoto Protocol. Article 12 of the Kyoto Protocol introduced the Clean Development Mechanism (CDM) which allows developed countries to implement emission reduction measures in countries of the global south and to consider the emission reductions achieved with regard to their obligation under the Kyoto Protocol. The Kyoto Protocol foresees specific soil-related requirements as CDMs, but this was not the case for projects directed at fostering carbon sequestration in soils. The Paris Agreement (UN 2015a) which was adopted in December 2015 is a further step forward with regard to climate change policy; it entered into force on 4 November 2016. The Agreement sets the ambitious objectives to hold the increase in the global average temperature to ‘well below’ 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels [Article 2.1 (a)], and furthermore to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century (Article 4.1). In order to implement these objectives, Contracting Parties must set and communicate ‘nationally determined contributions’ (NDCs), which will be reviewed every five years (Article 4.9) in order to ensure that the objectives of the Paris Agreement will be achieved. Meanwhile, more than 110 countries have announced that they will submit enhanced NDCs, and 121 countries have committed to achieving carbon neutrality by 2050. These calculations will have to include land use and land use changes, hopefully not only in the long run. However, the Paris Agreement (UN 2015a) does not contain specific soil or land-related obligations. A guideline for the counting of the NDCs (Article 4.13) aims to ensure that all reservoirs and sinks are appropriately considered and to avoid double counting. In addition to these official requirements, ‘voluntary contributions for timely implementation’ of the Paris Agreement are encouraged. Such contributions include initiatives for land-based climate change mitigation measures such as the 4‰ Initiative promoted by the French Ministry of Agriculture (Ministère d’Agriculture et de l’Alimentation 2017). Although the document is not really binding, success might lie in the process. Meanwhile, the UNFCCC, the Kyoto Protocol and the Paris Agreement clearly mandate initiatives for considering carbon sequestration in soil through various agricultural and forestry practices. All other soil functions, such as soil biodiversity

Soil protection and sustainable use of soils 47 or purification, do not directly fall within the mandate of these instruments. While the UNFCCC, the Kyoto Protocol and the Paris Agreement have not established a comprehensive regime with regard to land-related climate change measures, there is certainly room to do so within the legal scope of these instruments. In a nutshell, the UNFCCC and its Kyoto Protocol and Paris Agreement clearly focus on climate change aspects of soil protection. All other soil relevant aspects do not fall within the mandate of these instruments, and therefore the focus is limited. At the Petersberg Climate Dialogue in April 2020, UN Secretary-General António Guterres said the same leadership required to fight COVID-19 is also needed to address the climate crisis. And it may be added ‘and to fight soil and land degradation”. It is likely that soil will become a much more important part of the debate within the UNFCCC meetings, particularly in relation to the function of soil as a carbon sink. 3.3. United Nations Convention to Combat Desertification The United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, particularly in Africa (UNCCD, UN 1994), of 17 June 1994 (which entered into force on 26 December 1996) is the only legally binding global agreement directly dealing with the promotion of bio-productive land, albeit focusing on desertification processes. The UNCCD is in force almost universally due to its 195 Contracting Parties and aims at combating DLDD (desertification, land degradation and drought), particularly in African countries, through effective action at all levels. The objective of the UNCCD under Article 2 is ‘to combat desertification and mitigate the effects of drought in countries experiencing serious drought and/or desertification, particularly in Africa, through effective action at all levels’. Therefore, the UNCCD forms the framework for international law activities within the range of the fight against soil erosion and desertification, addressing also soil contamination and soil salinization, due to the wide scope of the definition of land degradation. The main approach of the UNCCD is capacity building rather than regulatory. Parties affected are required to set up rules for the establishment of strategies, national, regional and subregional action programmes, international cooperation, research, financial and institutional mechanisms etc. The UNCCD does not contain legal elements to address soil problems or interactions among soil functions. The geographical scope of application of the UNCCD is, however, limited to ‘drylands’ [Article 1(g)] and thus to about 40% of the terrestrial surface of the earth. According to Article 1(a) ‘desertification’ is defined as ‘land degradation in arid, semi-arid and dry sub-humid areas’. Nevertheless, Regional Annexes III and V of the UNCCD refer to areas which are affected by ‘desertification’ but do not comply with the scientific criteria stipulated in Article 1(g) of the Convention. Although the geographical focus is limited, the 6th Conference of the Parties adopted a regional annex for Central and Eastern European countries which enables the UNCCD to be applied more widely. However, since many Contracting Parties strictly oppose the formal extension of the geographical scope of the

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UNCCD to all terrestrial areas, a unanimous view of the Contracting Parties was not achieved, which is a precondition for formalizing a subsequent agreement. At the moment, the UNCCD, as it currently stands, cannot be considered an effective instrument for the protection and sustainable use of soils. An additional weakness of the UNCCD is that there are virtually no obligations relating to specific measures (except for the mentioned obligations to establish ‘National Action Plans’). The UNCCD Secretariat was one of the major drivers to include the objective of a ‘land degradation neutral world’ (LDN) in the Rio+20 Outcome Document, ‘The Future We Want’ (UN 2012). Since then the UNCCD has dealt with the question of what role UNCCD should have and how the objective of LDN could be implemented. In October 2015, the Contracting Parties took relevant decisions in that regard: Decision 3/COP.12 (UN 2015c) established a first and fundamental guideline on how LDN is to be implemented. The Decision foresees a general scientific definition for the term ‘land degradation neutrality’ and clarifies the necessary measures to be undertaken and the indicators for measuring LDN. COP 12 clarified that a significant proportion of land degradation occurs beyond arid, semi-arid and dry sub-humid areas. Decision 8/COP.12 (UN 2015d, p. 18) arguably extends de facto the geographical scope of the Convention by ‘noting that a significant proportion of land degradation occurs beyond arid, semi-arid and dry sub-humid areas’ and by recognizing ’that Parties may use the UNCCD to guide their policies relating to DLDD and voluntary targets when striving to achieve LDN at national and subnational levels’. Therefore, it enables all Contracting Parties, independently of whether their territories include drylands, to apply all LDN-related mechanisms. In general, the UNCCD has declared itself as the lead body on the international level for the implementation of LDN. However, as noted, strictly speaking, the Convention is legally applicable only to drylands, even considering the recent decisions taken during COP 12. The provisions require obligations which continue to appear quite vague. The UNCCD, as it currently stands (without a protocol on Zero Net Land Degradation), cannot be considered a comprehensive instrument for the protection and sustainable use of soils. Compared to UNFCCC and CBD, the UNCCD does not have the benefit of a protocol to support its implementation. The Specialist Group on Sustainable Soils and Desertification of the World Commission on Environmental Law (WCEL) of the International Union for the Conservation of Nature (IUCN) proposed a draft “Protocol for the Protection and Sustainable Use of Soil” (IUCN 2010, p. 8) to the UNCCD. Another proposal of this Specialist Group has been a “Protocol to the UNCCD on Zero Net Land Degradation” (IUCN 2012, p. 24). The inadequate legal basis at the national level is considered to be one of the main limiting factors that have prevented optimal implementation of the UNCCD. 3.4. Perspectives All three Rio conventions are contributing to soil protection. They are binding instruments which might influence the use of the soils, but they are insufficient as

Soil protection and sustainable use of soils 49 a comprehensive framework to meet the objectives of soil protection and sustainable use of soil (Heuser 2005, p. 350f). They do not include anywhere nearly a sufficient range of legal elements needed to protect and manage soils in a sustainable way because these policies often have other aims and other scopes of action. There is an urgency not just to improve the synergies between UNFCCC, CBD and UNCCD but also to provide benefits for the soils. International environmental law fails to take into consideration all of the implications of soil and tends to disregard it as such. The UNCCD is a bit of an exception; therefore this convention might be a good starting point for filling the gaps, especially with a protocol on the protection and sustainable use of soils). There are many positive approaches in existing international law, but these do not detract attention from the impression of a mosaic or ‘patchwork’ at present. The situation de lege lata is one of the major shortcomings in international environmental law, and soils really are the ‘poor nephews’, especially in the fields of biological and physical soil protection. Despite the fact that these environmental law instruments have the potential to accomplish much (especially with full implementation), land and soil resources would be better protected if they were addressed more comprehensively. A common framework is needed in order to articulate the efforts to improve the protection of soils and its sustainable use. Considering the shortcomings in international environmental law, the idea of a future international legal instrument on soil protection, which would contribute to more intensified dealing with soil threats in all facets, points in the right direction. A number of legal options are available to put in place such a regulatory mechanism which will achieve protection against all soil threats and promote sustainable use of soil, especially under the UNCCD (there are also parallel scenarios for the CBD).

4. Agenda 2030 and SDG process The crucial role of soils in promoting sustainable development has received increased attention at the political level in the years before and after the Rio+20 Conference in 2012. There were a number of relevant activities conducted by UNEP, UNCCD, FAO and other actors on the international level prior to it. In the Africa Consensus Statement by the African Union and other partners of October 2011 (AU 2011), it was stressed that the time has come for the international community to commit itself to a land degradation neutral world (LDNW) by setting sustainable development goals on land use, with targets towards achieving zero net land degradation (ZNLD). The Rio 20+ Outcome Document ‘The Future We Want’ (UN 2012) deals, in Paragraphs 205–209, with DLDD (desertification, land degradation and drought) as areas of future action. According to Paragraph 206, ‘we recognize the need for urgent action to reverse land degradation. In view of this, we will strive to achieve a land-degradation-neutral world in the context of sustainable development’. The Rio+20 Outcome statement (UN 2012) is now included in the 2030 Agenda for Sustainable Development (‘Transforming Our World’) which the UN General Assembly adopted on 25 September 2015 in Resolution 70/1 (UN 2015b). The

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Agenda includes 17 Sustainable Development Goals (SDGs) and 169 accompanying Targets as commitments for the countries of both the Global South and the Global North. The SDGs replace the Millennium Development Goals of the early 2000s and are intended to strongly stimulate the international and national political agenda to the year 2030. Healthy and productive soils are central to achieving a number of the SDGs. Soils fulfil a multitude of functions in human lives, but they are increasingly under pressure from climate change, population growth and poor land management. From the perspective of land and soil protection, SDG 15 (‘life on land’) and Target 15.3 are the most important. The text of SDG 15 ‘to halt and reverse land degradation’ appears ambitious, maybe even demanding, although it doesn‘t specify when this goal should be achieved. Target 15.3 specifies more concretely: ‘by 2030, combat desertification, and restore degraded land and soil, including land affected by desertification, drought and floods, and strive to achieve a landdegradation neutral world.’ The crucial term is ‘Land Degradation Neutrality’ (LDN). COP 12 of the UNCCD defined LDN as ‘a state whereby the amount and quality of land resources necessary to support ecosystem functions and services and enhance food security remain stable or increase within specified temporal and spatial scales and ecosystems’ (UN 2017a, p. 7). Target 15.3 uses the restrictive words ‘to strive to achieve a land-degradation neutral world’ (LDNW): Striving for LDNW in the context of sustainable development would mean avoiding land degradation through land use planning that fully accounts for the potential and resilience of land resources, adopting sustainable land management policies and practices in order to minimize current land degradation and rehabilitating or restoring degraded lands. So, in terms of principles of environmental law, this is about the precautionary and preventative principle as well as the polluter-pays principle. COP 12 instructed the UNCCD, to take the initiative to seek cooperation to achieve SDG Target 15.3, including providing ‘guidance for formulating national LDN targets and initiatives’ and facilitating ‘the use of the UNCCD indicator framework as a contribution to the monitoring, evaluation and communication of progress towards the national LDN targets’ (UN 2017a, p. 5). It has received wide political support and the UNCCD invited parties to formulate national voluntary targets to achieve LDN and to integrate LDN targets into their UNCCD National Action Programs. Through this LDN Target Setting Program which became operational in spring 2016, the UNCCD’s operational arm – the Global Mechanism – is supporting countries in their national voluntary LDN target setting processes. The main objective is to enable country parties to define national baselines and to identify voluntary targets and measures to achieve LDN by 2030. The Program also fits into the UNCCD’s 2016–2019 work plan and its outcome indicator, ‘the extent to which affected country Parties establish targets for addressing land degradation and rehabilitation’. In July 2017, the UN General Assembly approved a global indicator framework (UN 2017b) for the follow-up and review of progress towards the SDGs at the global level. The SDG indicator 15.3.1 and its sub-indicators, which are

Soil protection and sustainable use of soils 51 recognized as suitable metrics for monitoring and reporting on restoration, combatting desertification and achieving land degradation neutrality, read as follows: ‘the proportion of land that is degraded over total land area’. The three subindicators are: land cover and land cover change, land productivity and carbon stocks above and below ground. The LDN project is composed of a national LDN baseline, national LDN measures and target setting and the LDN target setting knowledge management; country parties and international organizations and stakeholders engaged in the LDN target setting process in a synergistic and coherent manner. In knowledge management, it may be appropriate for national entities to include a suitable legal and institutional framework in their methodology for achieving an LDN target. Yet many countries currently lack the necessary methods, data and expertise to set baselines and monitor and to report on progress against land degradation. On 14 September 2017, the UNCCD COP called upon Parties pursuing LDN to consider the guidance provided by the scientific conceptual framework for LDN and observe the LDN principles, considering national circumstances (UN 2017c). These LDN principles deal with underpinning the vision of LDN and are related to the frame of reference, to the mechanism for neutrality and to achieving neutrality. The adoption of a specific LDN target by the United Nations General Assembly within the SDGs is a manifestation of the increasing political awareness that soils need to be protected more effectively. Although the 2030 Agenda and the SDGs are not legally binding, they are politically important as they were endorsed by all States. Substantively, the quantitative content of the land degradation neutrality concept is a new challenge because it renders all endeavours potentially measurable. However, international environmental policy is still far from achieving this target. This process of target setting at the international and national level demands a high level of awareness of the fundamental role of soils. In the process of defining land degradation neutrality, it is anticipated that there will be more focus on the development of both national and international legal regimes for the sustainable use of soil over the coming years. At the moment, most countries and international organizations still don’t have an extensive, independent legal instrument for soil protection. Although the normative status of the Agenda 2030 and its Goals should not be overestimated, because the SDGs constitute a political declaration with mere political commitments which do not even amount to soft-law norms, and although they present aspirational targets rather than define specific outcomes, they influence international environmental law (Scholtz and Barnard 2018, p. 223f). This means in the context of the SDG 15 process that it can trigger the discussion: land degradation neutrality is a simple but effective idea that can connect the dots between most global goals and targets. Investments in land rehabilitation can advance the achievement of other SDGs, such as poverty eradication, food and water security, biodiversity protection, and climate change mitigation and adaptation. Therefore, SDG 15 and Target 15.3 could be regarded as a kind of priority targets: LDN is more than one target among the 17

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Sustainable Development Goals; it is (in the words of Monique Barbut, former executive secretary of the UNCCD) ‘the engine that will trigger change’. This shows that the Agenda 2030 and its SDGs and targets have a broader effect than expected, because the SDG targets – due to their overlapping nature – serve to remedy the siloist appearance of the Goals and may further facilitate real mainstreaming of the soil-related dimensions of sustainable development (Scholtz and Barnard 2018, p. 241).

5. Conclusion Land resources are degrading at an alarming pace, affecting sustainable development. Soil integrity is one of the basic and most neglected components of human culture and the global ecosystem. In most parts of the world, the fields of biological, chemical and physical soil protection are still ‘poor nephews’ compared to other environmental policymaking and legislation. Any use of soil should consider its multiple ecological functions, with a view to their conservation. What is needed is a shift in the way of thinking, away from the view of soils only as productive commodities. In order to feed a population of almost 10 billion people in 2050, coherent and immediate action against land and soil degradation is essential. Without fertile soils, food security, poverty alleviation and climate change mitigation and adaptation will not be achieved. Further soil degradation must be avoided in order to move towards sustainable use of soil and to scale up the rehabilitation of degraded land and soil. Soils need to be protected more effectively and in a legally binding way. Thinking might shift to acknowledge the importance of land and soils for sustainability as a whole in the future. Therefore, it is recommended that a binding international instrument relating to the protection and sustainable use of soils be developed. The health of the soils will determine the future prosperity and security of humankind. All life on earth depends on access to healthy and productive land. It must be acknowledged that soils demand attention on the same level as biological diversity and climate change, and every step must be taken to translate this insight into legal reality, so that societal rethinking – especially in the wake of the COVID-19 pandemic – is not just a vague hope but a realistic expectation. Society needs to appreciate the role of soils for sustainability and particularly in the context of the implementation of the 2030 Agenda, SDG 15 and its relevance also for other SDGs, especially for the climate action according to SDG 13 and the Paris Agreement. Considering the essential role soils play in the evolution of the biosphere and the maintenance of life, it must be concluded that reconciling human existence with ecological integrity would also mean that a paradigm shift in the thinking about the soils is needed to ensure that future generations will have the same quantity and quality of soil. The societal task would be to tread new paths towards the preservation of ecologically stable and healthy soils and to develop a new, ecology-based soil protection ethic. The legal framework to be created will underpin and stabilize this development.

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Acknowledgements The valuable comments and helpful input of an anonymous reviewer are heartily acknowledged.

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Soil protection and sustainable use of soils 55 Intergovernmental Working Group Report on Land Degradation Neutrality, Decision 3/COP.12, Accessed at https://www.unccd.int/sites/default/files/inline-files/dec3COP.12eng.pdf on 2nd Oct 2020. UN, 2015d. Addressing Particular Regional and National Conditions, Decision 8/COP.12, Accessed at https://www.unccd.int/sites/default/files/sessions/documents/ICCD_ COP12_20_Add.1/20add1eng.pdf on 2nd Oct 2020. UN, 2017a. Scientific Conceptual Framework for Land Degradation Neutrality. A Report of the Science-Policy Interface, Bonn, Germany, Accessed at https://www.unccd.int/sites/ default/files/documents/2019-06/LDN_CF_report_web-english.pdf on 1st Oct 2020. UN, 2017b. Work of the Statistical Commission Pertaining to the 2030 Agenda for Sustainable Development, Resolution 71/313 adopted by the General Assembly on 6 July 2017. Accessed at https://undocs.org/A/RES/71/313 on 1st Oct 2020. UN, 2017c. Follow-Up on the Work Programme of the Science Policy Interface for the Biennium 2016–2017, Decision 18/COP.13 UNCCD. Accessed at https://www.unccd. int/sites/default/files/sessions/documents/2019-08/18COP13_0.pdf on 1st Oct 2020.

4

The conservation and sustainable use of the agroecosystem in international law Ancui Liu1

1. Introduction Agroecosystems refer to ecosystems under agricultural management, connected to other ecosystems (Hospes 2015). It is one type of anthropogenic or artificial ecosystems which are distinguished from natural ecosystems (Monteduro 2013). Natural ecosystems depend on solar energy or energy from other natural resources, and they can sustain the balance without requiring the intervention of man (Monteduro 2013). Artificial ecosystems, including agroecosystems, require constant human intervention if they are to be maintained (Monteduro 2013). Agroecosystems have been regulated by laws from international law to local laws, touching upon different subject matters such as biodiversity, food security, environment, and agriculture. Hospes (2015) analyses different ways of using a legal pluralistic perspective on laws, social fields and sovereignty. The conservation and sustainable use of agroecosystems are key elements of sustainable agriculture (Altieri 2018). International law that deals with agricultural matters include international investment law, international trade law and international environmental law (Di Benedetto 2015). Most of the international instruments involved concentrate on the increase of food or agricultural production, with less weight put on the conservation and sustainable use of agroecosystems (Di Benedetto 2015; Monteduro 2013; Kameri-Mbote and Cullet 1999). Some scholars have studied the relationship between international environmental law and agriculture or even between international environmental law and international agricultural law. It is concluded that there has not been a holistic subject called international agricultural law, that international law that addresses agricultural matters is fragmented (Di Benedetto 2015; Alabrese 2017) and that agricultural matters in international environmental law are not dealt with in a systematic way (Di Benedetto 2015; Sands et al. 2012). Nonetheless, international environmental law provides a relatively large number of legal rules that aim to serve sustainable agriculture by tending to the conservation and sustainable use of biodiversity. International environmental law that deals with agricultural matters is affected by ecological ideas (Di Benedetto 2015). For example, the conservation of biodiversity is considered when agricultural matters are

The agroecosystem in international law 57 regulated by international environmental law (Kameri-Mbote and Cullet 1999), and ecosystems including agroecosystems are especially addressed by international environmental law (Head 2016; Moore 2009; Harrop 2009; Harrop 2007; Tarlock 2007). Some international instruments address agroecosystems from the perspectives of agrobiodiversity (Chiarolla 2017). “Agrobiodiversity” or “agricultural biodiversity” refers to all components of biodiversity of relevance to food and agriculture and all components of biodiversity that constitute the agroecosystem: ecosystems, species and genetic variances (Gillespie 2011; Wolff 2004; Wolff 2006; Santilli 2012). Agrobiodiversity provides many benefits. For example, traditional varieties of crops may provide solutions for diseases in plants (Gillespie 2011). Agroecosystems thus are important parts of agrobiodiversity (Santilli 2012). The Convention on Biological Diversity (CBD) and its protocols are important international instruments that address agrobiodiversity (Morgera and Saba 2017; Chiarolla 2017) and will therefore be analysed in this chapter. The International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty) also provides special protection concerning agrobiodiversity. Some other international instruments are applicable to agricultural products too. For example, the World Trade Organisation agreements have rules on the trade of agricultural products, and TRIPS provides rules regarding intellectual property rights protection for agricultural products. Since they are not directly related to the farming and landscape levels, they are not included and analysed in this chapter. As will be explained in Section 2 of the chapter, some agricultural practices such as agroecology and climate-smart agriculture are promoted as new types of sustainable agriculture because they may conserve agrobiodiversity. However, the literature has much less studied the regulation of agroecosystems against the backdrop of developing sustainable agriculture. Analyses of international instruments that apply to agroecosystems and their roles of promoting sustainable agriculture are important in understanding to what extent international law contributes to the development of sustainable agriculture. Thus this chapter will answer how agroecosystems are regulated in international environmental law by investigating the relevant international instruments and actors. It will also be answered how the international instruments and institutional arrangements can be improved to provide more protection for agroecosystems. The chapter will be structured as follows. Section 2 will provide more background information, including the definition and history of sustainable agriculture and the links between agroecosystems, sustainable agriculture and sustainable development. Section 3 will focus on the international instruments that relate to the conservation and sustainable use of agroecosystems by first discussing the relevant provisions and then analysing the institutional arrangements. Section 4 will provide conclusions, providing recommendations to improve current international instruments and institutional arrangements to provide better protection for agroecosystems in international law.

58 Ancui Liu

2. Agroecosystems and sustainable agriculture Since the 1980s, the world has intensively used new techniques to equip industrialized agriculture in order to increase the productivities. The instant effect is that the industrial intensification contributes to solving the problem of increasing population and the inability of the earth providing enough food. However, other considerations are less weighted in this process. For example, fewer and fewer natural resources are available, and the negative effects on the environment are not well considered in developing the industrial agriculture (Gold 2016; Monteduro 2013). Agrobiodiversity loss is one of the environmental issues caused by the industrialized agricultural system (Wolff 2006; Santilli 2012). Against this backdrop, sustainable agricultural systems or food production systems are raised by the United Nations (UN) as a solution for problems caused by industrial agriculture. Promoting sustainable agriculture is part of the 2nd Sustainable Development Goal (SDG) designed by the UN, which is to end hunger, achieve food security and improved nutrition and promote sustainable agriculture. Research focusing on legal perspectives on sustainable agriculture has also started (Girard and Frison 2018; Steier 2016). Sustainable agriculture as required by the 2nd SDG is a subcategory of sustainable development. It thus relates to three dimensions: the economic, social and environmental dimensions. The environmental dimension is especially stressed. Sustainable agriculture generally refers to “a mode of farming that attempts to provide long-term sustained yields through the use of ecologically sound management technologies” (Altieri 2018, p. 89; for more discussions, Gold 2016). This requires that agriculture be regarded as an ecosystem (hence, the term “agroecosystem”) (Altieri 2018). Two considerations are required to be considered: (1) the farming and research aiming at the optimization of the system instead of considering only high yields of a particular commodity and (2) considering the vital issue of ecological stability and sustainability by looking beyond production economics (Altieri 2018). Several alternative and sustainable agricultural systems are proposed, such as climate-smart agriculture and agroecology (Noriega et al. 2017). These different agricultural systems have the same goal of sustainability. However, they have different theories, principles and approaches. Moreover, many emerging terms have not gained generally acceptable definitions. Agroecology is a more recent type of agricultural system that is deemed sustainable agriculture. Agroecology is a concept involving ecological science, agricultural practices and social science (Caporali 2015; for three phrases of agroecology, see Monteduro 2013). Agroecology is gradually raised as one of the examples of sustainable agriculture (Di Benedetto 2015; Mockshell and Kamanda 2018; Wezel and Soldat 2009; for definitions of agroecology, see Loconto and Fouilleux 2019; Wezel et al. 2015). It is promoted by some countries and international bodies to develop agro-ecological practices to solve current agricultural problems (Monteduro et al. 2015). In its summary of the 2nd International Symposium on Agroecology, which concentrated on scaling up agroecology to achieve the SDGs, the Food and Agriculture Organization (FAO) highlights its continued commitment to agroecology, which includes “the broad

The agroecosystem in international law 59 recognition of the need to foster its growth and support countries and different stakeholders in this process while respecting the principles and local experiences of agroecology” (FAO 2018). Agroecosystems are the key elements in agroecology, consisting of various levels of organizations, from the field, farm, landscape, national to international levels (Caporali 2015; Monteduro 2013). Agroecological practices are being promoted by the FAO, and the literature has studied the legitimacy and methods to promote agro-ecological intensification (Niggli 2015; Wezel et al. 2015). Laws on agroecology are especially studied to incorporate the regulation of agroecology into current laws and policies (de Wit and Iles 2016; Bailey 2016; Noe and Alrøe 2015; Di Benedetto 2015; Monteduro 2015; Monteduro 2013). The literature argues the necessity to mainstream agroecology considerations into international law when an international agroecology law is currently not possibly being accepted by the international community (Di Benedetto 2015). In the long term, agroecology “could become the unifying concept that deals autonomously with agriculture in international law” (Di Benedetto 2015, p. 123). The most far-reaching suggestion is to make an international convention on agroecology (Head 2017). A common question that should be considered when developing sustainable agriculture is how agroecosystems are conserved or sustainably used.

3. International instruments and actors 3.1. CBD The topic of agriculture and conservation is firstly legally discussed by the CBD (Gillespie 2011). The CBD is dedicated to conserving biodiversity, keeping up the sustainable use of components of biodiversity and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources (UN 1992, art. 1). Its work focuses on the biodiversity and mainstreaming of the sustainable use of agrobiodiversity (Gillespie 2011). Thus it is related to the conservation, exploitation and sustainability of natural resources and agrobiodiversity (KameriMbote and Cullet 1999). Meanwhile, the CBD provides for public education and awareness with respect to the conservation and sustainable use of biodiversity (UN 1992, art. 13). Agroecosystems or agrobiodiversity is not specifically mentioned in the CBD. However, agrobiodiversity is included as part of biodiversity (Burhenne-Guilmin 2008). Hence, most of the measures will apply to the conservation and sustainable use of agrobiodiversity. Moreover, some decisions of COPs and the Strategic Plan for Biodiversity 2011–2020, including the Aichi Biodiversity Targets initiatives are directly applicable to the conservation and sustainable use of agrobiodiversity (Strategic Plan for Biodiversity 2011–2020, including Aichi Biodiversity Targets 2020). Both the Strategic Plan and these targets are international soft laws which give guidance for nations and the international community but are not legally binding (Chiarolla 2017).

60 Ancui Liu Decisions that have adopted COPs of the CBD and that are relevant to agrobiodiversity include Decision 14/2 (CBD COP 2018a), Decision XIII/3 (CBD COP 2016), Decision X/34 (CBD COP 2010), Decision IX/2 (CBD COP 2008), Decision VIII/23 (CBD COP 2006a), Decision VII/3 (CBD COP 2004), Decision VI/5 (CBD COP 2002), Decision V/5 (CBD COP 2000), Decision IV/6 (CBD COP 1998) and Decision III/11 (CBD COP 1996). Basically, conservation of the sustainable use of genetic resources, sustainable agriculture, mainstreaming of biodiversity across the agricultural sector and agroecology are encouraged by these decisions. For example, in 2000, general aspects of agrobiodiversity are addressed by Decision V/5 (Santilli 2012; Gillespie 2011; Rose 2002); in 2016, Decision XIII/3 included guidance on mainstreaming biodiversity into the agricultural sectors (Morgera and Saba 2017; CBD COP 2006b). This demands cooperation across international conventions and international organizations. FAO has acted as a biodiversity mainstreaming platform for the agricultural sectors (CBD COP 2018b, para. 10). The 2030 Agenda for Sustainable Development also deals with the mainstreaming of biodiversity into agricultural sector (Morgera and Saba 2017). In 2010, the Aichi Biodiversity Targets were set, aiming to achieve a series of goals regarding the prevention of biodiversity loss by 2020. Several targets of the Aichi Biodiversity Targets are related to agrobiodiversity, including Targets 7, 8 and 13 (Gillespie 2011). According to Target 7, by 2020 areas under agriculture were managed sustainably, ensuring conservation of biodiversity.2 Target 8 and Target 13 address pollution control for the purpose of protecting ecosystem function and biodiversity and the maintenance of genetic diversity, respectively. National actions and international cooperation are required in order to realise these targets (Sands et al. 2012). “To increase the sustainability and productivity of agriculture, increasing and making better use of biodiversity within agricultural ecosystems to contribute to increases in sustainable production” is one measure mentioned in scenarios for the 2050 Vision for Biodiversity (CBD COP 2018a, para. 4 of the Annex). States may develop “policy mixes” to implement the 2050 Vision for Biodiversity depending on their needs and priorities (CBD COP 2018a, para. 5 of the Annex). 3.2. Cartagena Protocol on Biosafety (CPB) to the Convention on Biological Diversity The CPB is relevant to agriculture in the sense that it contributes to the conservation of agrobiodiversity by regulating the safe use of genetically modified organisms (GMOs), especially transboundary movements of GMOs. The cultivation of GM crops and rearing of GM animals are regulated by the CPB if these activities are directly related to the import or export of GMOs. The advance informed agreement procedure is designed to regulate the transboundary movements of GMOs. Meanwhile, a biosafety clearing house mechanism is adopted to exchange information. The CPB is guided by the precautionary approach and encourage public’s involvement in decision-making procedures. Parties to the

The agroecosystem in international law 61 CPB are given discretion in deciding how to implement obligations imposed by the protocol. Moreover, public involvement in regulating GMOs is encouraged by the CPB (Kovács 2014; Kritikos 2011). This requirement could also apply to the protection of agroecosystems when cultivating or rearing GMOs. The promotion of public awareness and public education and the guarantee of public participation in decision making on GMOs are two main aspects of public involvement in CPB. Firstly, the parties to the CPB shall promote and facilitate public awareness, education and participation regarding the safe transfer, handling and use of GMOs with the aim of conserving and using biodiversity sustainably, also taking into account risks to human health [UN 2000, art. 23.1(a)]. In doing so, the parties shall cooperate, as appropriate, with other countries and international bodies [UN 2000, art. 23.1(a)]. Secondly, the parties shall endeavour to ensure that public awareness and education include access to information on GMOs identified that, in accordance with the CPB, may be imported [UN 2000, art. 23.1(b)]. The word “endeavour” indicates that this provision is non-mandatory, leaving discretion to the parties who do not have sufficient capacity in doing so (Skarlatakis and Kinderlerer 2013). It should be noted that access to information is merely one method of promoting public awareness and education. Access to information is, however, a key element in public involvement, and it is important for public participation in decision making. Thirdly, regarding public participation in decision making, the parties shall, on the basis of their respective laws and regulations, consult the public in the decision-making process regarding GMOs and shall make the results of such decisions available to the public (UN 2000, art. 23.2). Fourthly, the parties shall endeavour to inform their public about the way to have access to the Biosafety Clearing-House. 3.3. Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from their utilization to the Convention on Biological Diversity According to the current international law principle, nations have sovereign rights over all their natural resources (Kameri-Mbote and Cullet 1999). However, this issue is a common concern of many countries, and international law will provide beneficial perspectives. National sovereign rights over natural resources are qualified by notions such as the notion of common concern of humankind embodied in the CBD (Food Security and Nutrition and Sustainable Agriculture 2020). According to the CBD, genetic resources are within the national sovereignty, but nations should facilitate access to genetic resources for environmentally friendly uses (Kurukulasuriya and Robinson 2006). Meanwhile, the private rights of indigenous people to genetic resources and traditional knowledge related to genetic resources are also protected by the CBD. The Nagoya Protocol was adopted to elaborate on the CBD’s provisions by regulating the conservation and sustainable use of genetic resources (Gillespie 2011). The Nagoya Protocol is not applicable to plant genetic resources for food and agriculture as it recognizes the special nature of agrobiodiversity (Pavoni and Piselli 2017; Burhenne-Guilmin 2008).

62 Ancui Liu However, the Nagoya Protocol should be considered when discussing the protection of agroecosystems because natural ecosystems that are governed by the Nagoya Protocol have direct effects on agroecosystems. 3.4. International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty) The Plant Treaty implements the equity and benefit-sharing principles of CBD regarding genetic resources for food and agriculture (Chiarolla 2017). The aim of the Plant Treaty is not only about the conservation of genetic resources but also about the protection of economic interests arising from genetic resources, especially for private actors. For instance, plant genetic resources and crop diversity are foundations for improving and adopting food and farming systems (Chiarolla 2017). Thus the Plant Treaty balances economic values and ecological values (Di Benedetto 2015; see also Girard and Frison 2018; Micara 2017). According to the Plant Treaty, plant genetic resources should be protected and fairly used. The principle is that plant genetic resources are within the national sovereignty, which is consistent to the principle of the CBD and the Nagoya Protocol (Chiarolla 2017). The FAO especially deals with agrobiodiversity, although CBD is responsible for regulating biodiversity issues (Patricia et al. 2009; Louka 2006). The principle works through a Multilateral System (Chiarolla 2017; Micara 2017). A Standard Material Transfer Agreement (Plant Treaty, art. 12.4) was adopted to implement the requirements of the Plant Treaty. Farmers contribute to the preservation of plant genetic resources, and thus their rights should be protected (Chiarolla 2017; for farmers’ rights, see Wolff 2006). According to Article 9 of the Plant Treaty, farmers’ rights should be protected while it depends on national laws and policies to implement this provision (Chiarolla 2017; see also Di Benedetto 2015). More concerns on agrobiodiversity should be considered by the Commission on Genetic Resources for Food and Agriculture (Chiarolla 2017). Other literature studies the provisions of this treaty and makes recommendations for the improvement of the equity of the current provisions (Kolady 2014; Phillips 2016; Chiarolla 2017).

4. Conclusions This chapter explains several terms that relate to agriculture, including sustainable agriculture, agroecosystems, agrobiodiversity and agroecology. The clear definitions of these terms will contribute to the understanding of international laws that regulate agroecosystems. Briefly, sustainable agriculture is a subcategory of sustainable development and is used to overcome problems caused by industrial agriculture. Agroecology is one typical agricultural mode that is regarded as a type of sustainable agriculture. Agrobiodiversity refers to components of biodiversity that are of relevance to food and agriculture. Agroecosystems are important elements of sustainable agriculture, agrobiodiversity and agroecology.

The agroecosystem in international law 63 The international regulation regarding agroecosystems was discussed in this chapter. It is argued that the regulation over agrobiodiversity is more directly related to the conservation and sustainable use of agroecosystems than other types of environmental legal instruments. The international instruments that regulate agroecosystems include the CBD, the CPB and the Plant Treaty. Guidance documents under the CBD, including a strategic plan and several decisions of the conferences of parties, are promoting the sustainable development of agriculture. The CPB promotes the sustainable development of agricultural species by controlling the safe use and transboundary movements of GMOs. The secretariat of the CBD manages the operation of CBD and CPB. The Plant Treaty provides a systematic legal system that govern the access to and benefit sharing of genetic resources for food and agriculture. FAO plays a key role in the implementation of the Plant Treaty. More collaboration among the bodies for biodiversity and FAO is needed to promote a faster transition from the industrial agriculture to more sustainable agricultural systems.

Acknowledgements The valuable comments and helpful input of an anonymous reviewer are heartily acknowledged.

Notes 1 Lecturer, Faculty of Law, Nankai University. 2 Further actions should be taken regarding the conservation and sustainable use of soil biodiversity. See para. 14(e) of COP Decision 14/1, COP Decision X/34 and COP Decision VIII/23.

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The agroecosystem in international law 65 Harrop, S. R. (2007). Traditional Agricultural Landscapes as Protected Areas in International Law and Policy. Agriculture, Ecosystems & Environment, 121(3), 296–307. Harrop, S. R. (2009). Globally Important Agricultural Heritage Systems: An Examination of Their Context in Existing Multilateral Instruments Dealing with Conservation and Land Tenure. Journal of International Wildlife Law & Policy, 12(3), 127–165. Head, J. W. (2016). Grasslands, Agriculture, and International Law: A Survey of Proposed Reforms. Kansas Journal of Law & Public Policy, 26(3), 297–323. Head, J. W. (2017). International Law and Agroecological Husbandry: Building Legal Foundations for a New Agriculture. Abingdon and New York: Routledge. Hospes, O. (2015). Addressing Law and Agroecosystems, Sovereignty and Sustainability from a Legal Pluralistic Perspective. In M. Monteduro, P. Buongiorno, S. Di Benedetto, & A. Isoni (Eds.), Law and Agroecology: A Transdisciplinary Dialogue (pp. 47–56). Heidelberg, Germany: Springer. Kameri-Mbote, A. P., & Cullet, P. (1999). Agro-Biodiversity and International Law-a Conceptual Framework. Journal of Environmental Law, 11(2), 257–279. Kolady, D. E. (2014). International Regimes on Plant Intellectual Property Rights and Plant Genetic Resources: Implications for Stakeholders. In S. J. Smyth, P. W. B. Phillips, & D. Castle (Eds.), Handbook on Agriculture, Biotechnology and Development (pp. 505– 521). Cheltenham and Northampton, MA: Edward Elgar Publishing. Kovács, Á. (2014). Public Participation in GMO Regulation. In G. Bándi (Ed.), Environmental Democracy and Law: Public Participation in Europe (Vol. 11, pp. 307–319). Groningen, the Netherlands: Europa Law Publishing. Kritikos, M. (2011). Shaping Transnational Public Participation Norms in the Field of Modern Biotechnology: Time for a Global Good Governance Approach? In M. Pallemaerts (Ed.), The Aarhus Convention at Ten: Interactions and Tensions Between Conventional International Law and EU Environmental Law (Vol. 9, pp. 213–244). Groningen, the Netherlands: Apollo Books. Kurukulasuriya, L., & Robinson, N. A. (2006). Training Manual on International Environmental Law: UNEP/Earthprint. Retrieved 2020-6-15 at https://www.unenvironment. org/resources/report/unep-training-manual-international-environmental-law. Loconto, A. M., & Fouilleux, E. (2019). Defining Agroecology: Exploring the Circulation of Knowledge in FAO’s Global Dialogue. The International Journal of Sociology of Agriculture and Food, 25(2), 116–137. López Noriega, I., Dawson, I. K., Vernooy, R., Köhler-Rollefson, I., & Halewood, M. (2017). Agricultural Diversification as an Adaptation Strategy. Agriculture for Development, 30, 25–28. Louka, E. (2006). International Environmental Law: Fairness, Effectiveness, and World Order. New York: Cambridge University Press. Micara, A. G. (2017). International Law on Plant Genetic Resources for Food and Agriculture: Towards a New Balance? In M. Alabrese, M. Brunori, S. Rolandi, & A. Saba (Eds.), Agricultural Law: Current Issues from a Global Perspective (Vol. 1, pp. 53–82). Cham, Switzerland: Springer. Mockshell, J., & Kamanda, J. (2018). Beyond the Agroecological and Sustainable Agricultural Intensification Debate: Is Blended Sustainability the Way Forward? International Journal of Agricultural Sustainability, 16(2), 127–149. Monteduro, M. (2013). Environmental Law and Agroecology. Transdisciplinary Approach to Public Ecosystem Services as a New Challenge for Environmental Legal Doctrine. European Energy and Environmental Law Review, 22(1), 2–11. Monteduro, M. (2015). From Agroecology and Law to Agroecological Law? Exploring Integration between Scientia Ruris and Scientia Iuris. In M. Monteduro, P. Buongiorno,

66 Ancui Liu S. Di Benedetto, & A. Isoni (Eds.), Law and Agroecology: A Transdisciplinary Dialogue (pp. 57–86). Heidelberg, Germany: Springer. Monteduro, M., Buongiorno, P., Di Benedetto, S., & Isoni, A. (2015). Preface. In M. Monteduro, P. Buongiorno, S. Di Benedetto, & A. Isoni (Eds.), Law and Agroecology: A Transdisciplinary Dialogue (pp. v–vii). Heidelberg, Germany: Springer. Moore, G. (2009). Multilateral and National Regulatory Regimes for Agrobiodiversity. In S. Lockie & D. Carpenter (Eds.), Agriculture, Biodiversity and Markets: Livelihoods and Agroecology in Comparative Perspective (pp. 47–60). London and Washington, DC: Routledge. Morgera, E., & Saba, A. (2017). Sustainable Agricultural Production, Environmental Sustainability and Food Security: How to Frame the Legal Intervention. In M. Alabrese, M. Brunori, S. Rolandi, & A. Saba (Eds.), Agricultural Law: Current Issues from a Global Perspective (pp. 15–18). Cham, Switzerland: Springer. Niggli, U. (2015). Incorporating Agroecology into Organic Research – An Ongoing Challenge. Sustainable Agriculture Research. Sustainable Agriculture Research, 4(3), 149–157. Noe, E. B., & Alrøe, H. F. (2015). Regulation of Agroecosystems: A Social Systems Analysis of Agroecology and Law. In M. Monteduro, P. Buongiorno, S. Di Benedetto, & A. Isoni (Eds.), Law and Agroecology: A Transdisciplinary Dialogue (pp. 31–45). Heidelberg, Germany: Springer. Patricia, B., Boyle, A., & Redgwell, C. (2009). International Law and the Environment (3 ed.). New York: Oxford University Press. Pavoni, R., & Piselli, D. (2017). Access to Genetic Resources and Benefit-Sharing. In J. Razzaque & E. Morgera (Eds.), Biodiversity and Nature Protection Law (Vol. 3, pp. 237–250). Cheltenham and Northampton, MA: Edward Elgar. Phillips, P. W. B. (2016). Ownership of Plant Genetic Resources. In B. Thomas, D. J. Murphy, & B. G. Murray (Eds.), Encyclopedia of Applied Plant Sciences: Volume 2 Breeding Genetics and Biotechnology (Vol. 2, pp. 28–32). Oxford and Waltham, MA: Academic Press. Plant Treaty, International Treaty on Plant Genetic Resources for Food and Agriculture, adopted 3 November 2001, entered into force 29 June 2004, 2400 UNTS 303. Rose, G. (2002). International Law of Sustainable Agriculture in the 21st Century: The International Treaty on Plant Genetic Resources for Food and Agriculture. The Georgetown International Environmental Law Review, 15(4), 583–632. Sands, P., Peel, J., Fabra, A., & Mackenzie, R. (2012). Principles of International Environmental Law (3rd ed.). Cambridge and New York: Cambridge University Press. Santilli, J. (2012). Agrobiodiversity and the Law: Regulating Genetic Resources, Food Security and Cultural Diversity. Abingdon and New York: Routledge. Skarlatakis, C. T., & Kinderlerer, J. (2013). The Importance of Public Participation. In M.-C. C. Segger, F. Perron-Welch, & C. Frison (Eds.), Legal Aspects of Implementing the Cartagena Protocol on Biosafety (pp. 111–130). New York: Cambridge University Press. Steier, G. (2016). Small Farmers Cool the Planet-the Case for Rights-Based International Agroecological Law. Groningen Journal of International Law, 4(2), 1–13. Strategic Plan for Biodiversity 2011–2020, Including Aichi Biodiversity Targets. Retrieved 2020-9-13 at https://www.cbd.int/sp/. Tarlock, D. (2007). Ecosystems. In D. Bodansky, J. Brunnée, & E. Hey (Eds.), The Oxford Handbook of International Environmental Law (pp. 574–596). Oxford and New York: Oxford University Press.

The agroecosystem in international law 67 UN (1992). The Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, entered into force on 29 December 1993, 1760 United Nations Treaty Series 79, 31 International Legal Materials 818. UN (2000). The Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Montreal, 29 January 2000, entered into force on 11 September 2003, 2226 United Nations Treaty Series 208, 39 International Legal Materials 1027. Wezel, A., Soboksa, G., McClelland, S., Delespesse, F., & Boissau, A. (2015). The Blurred Boundaries of Ecological, Sustainable, and Agroecological Intensification: A Review. Agronomy for Sustainable Development, 35(4), 1283–1295. Wezel, A., & Soldat, V. (2009). A Quantitative and Qualitative Historical Analysis of the Scientific Discipline of Agroecology. International Journal of Agricultural Sustainability, 7(1), 3–18. Wolff, F. (2004). Legal Factors Driving Agrobiodiversity Loss. Environmental Law Network International, 1, 1–11. Wolff, F. (2006). The Transformation of Agriculture: Reflexive Governance for Agrobiodiversity. In J.-P. Voß, D. Bauknecht, & R. Kemp (Eds.), Reflexive Governance for Sustainable Development (pp. 383–416). Cheltenham and Northampton, MA: Edward Elgar Publishing.

5

Subsidiarity for sustainability Historical development and application in the European Union and in federal legal systems Rasyikah Md Khalid1

1. Introduction: subsidiarity in context The word “subsidiarity” originates from the Latin word subsidium or to sit behind and was used in the Roman Empire to describe a military group that would “sit behind” in case extra support is needed (Schere, 2000, p. 176). Within the present context, subsidiarity assumes an allocation of decision-making power based on certain criteria to ensure that a decision is made at the most appropriate political or administrative level. It also implies that the higher level of government will not interfere and will protect the prerogatives of the lower levels (Tilindyte, 2018) Political philosophers like Aquinas and Aristotle described subsidiarity as an idea that the highest level of government should have the subsidiary function to perform only those tasks which cannot be performed effectively at a lower or local level (Bridge, 1999). As such, subsidiarity is seen as a political rather than a legal concept, unless and until it is specifically provided as a statutory requirement. For centuries, the idea of subsidiarity was embedded both in social and political contexts. The social subsidiarity generally refers to the social teaching which suggests that social justice can be met through the participation by all parts of the society; while the political subsidiarity proposes that decision making should be made at the level closest to those affected in the society (Vischer, 2002). Both types of subsidiarity are already rooted in the American Constitution as it guarantees fundamental rights of expression and private association to states, whose power is, in turn, limited and scattered among government agencies (Bayer, 2004). In Europe, social subsidiarity was revived in the Catholic Church mainly after the World War II, while political subsidiarity is entrenched in the Treaty on European Union (EU) 1992 (EU, 2020a) as “an obligation to act towards a given person or community so as to provide the means to achieve that objective” (Cocosatu, 2012, p. 32). This chapter analyses the significance of subsidiarity as a legal concept, notably in the regulatory framework. In particular, it will examine the significance of the subsidiarity principle in the EU Water Framework Directive 2000 (EU, 2020b) and the federated Australia Water Act 2007 of the Australian Government (2020b), as well as the different intentions of legislators in the union and federal systems in employing the concept in the law.

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2. Implementing subsidiarity: the European way Article 3b of the Treaty on European Union (EU, 2020a) provides: The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. The subsidiarity principle is incorporated in Article 3 of the Water Framework Directive (WFD), which calls for the coordination of administrative arrangements within a river basin district. As such, a Member State needs to identify an appropriate competent authority to apply the WFD in a river basin district within its territory and to ensure that a river basin covering the territory of more than one Member State is assigned to an international river basin district. Subsidiarity also encourages general users to be actively involved and consulted in the production, review and updating of a particular river basin management plan. In this regard, Giakoumis and Voulvoulis (2018) argue that the WFD will become a sustainable solution when it is delivered through a bottom-up approach, and the general public part can play their part in river basin management through river adoption schemes at schools or residential areas. The WFD may not improve a current situation if an implementation is continuously made in isolation, leaving the decision making to regulators and disregarding the role of society. As such, the WFD recognizes the role that can be played by all stakeholders, including the general public, in achieving a sustainable water resources management (Giakoumis and Voulvoulis, 2018). While Article 12 requires a Member State to refer to the EU Commission to deal with issues that cannot be solved at the national level, Article 14 invites the public to take part in developing or to review their river basin management plan. Despite these efforts, the application of the subsidiarity principle in Europe is subject to the principles of “conferral” and “proportionality”. The principle of conferral is stipulated under Article 5(2) of the Treaty on EU 1992 (EU, 2020a) whereby the Union shall act within the limits of the powers conferred upon it by the Member States. Nonetheless, Article 5(3) allows the Union to act on matters beyond its competence if the objectives of the proposed action cannot be sufficiently achieved by the Member States. Following this, Article 5(4) calls for the use of the proportionality principle to ensure that the content and form of Union action “shall not exceed” what is necessary to achieve the objectives of the Treaty on European Union 1992 (EU, 2020a). The incorporation of these principles affirms Member States’ legislative rights in areas of shared competence so much so that they can preserve their historic, nationalist and sovereignty. They can reject a proposal from the EU Commission

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if it is disproportionate or if it amounts to over-regulation. Members of a federation may not get the same opportunity as the federal government usually has the upper hand to deal with state matters on the basis of national interests, as seen in Malaysia and Australia. Besides proportionality, effectiveness, efficiency or necessity can ensure that a decision is taken at the appropriate political level. This means that a decision does not necessarily take place at the lowest level but rather at the most effective and efficient level (Bridge, 1999). The efficiency test is embedded in the Treaty on European Union as power allocation will move downwards and to a smaller units unless centralization l results in efficiency gains (EU, 2020a). Critics like Schutze (2009), Schere (2000) and Vischer (2002) believe that the most effective level should be the lowest possible level. This corresponds with Article 4(3) of the European Charter on Local SelfGovernment (EU, 2020c), which requires public responsibilities to be exercised by those authorities closest to the citizen (Visser, 2010). Although there is no hard and fast rule in ascertaining the most effective level, there is a general consensus that the Union should legislate only to the extent necessary. There is also no guarantee that subsidiarity means decisions must be made at the lowest level. The European Charter on Local Self-Government provides that, although public responsibilities shall be exercised by authorities closest to the citizen, the “allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy” (quoted after Visser, 2010, p. 98). Any EU directive sets more general provisions and leaves the Member States to set higher national standards. However, the Union can deal with a problem if it is necessary to achieve the EU’s objectives. In contrast with the federal system, Vischer (2002 p. 104) argues that: Subsidiarity is not simply an abstract principle of governance, but rather a practical framework for solving real problems. While government action should be undertaken with a view toward fostering the efficacy of mediating structures, the absence of such structures does not preclude attempts to solve pressing problems. And where localized problem-solving is not feasible or effective, subsidiarity contemplates direct intervention by the federal government. After more than two decades of the Treaty of the European Union, the application of subsidiarity in the EU is still undergoing a painstaking process as Member States are still very cautious about its interpretation on a theoretical level. As Cocosatu (2012 p. 35) puts: Some consider the principle as restricting the Union’s action only to what is necessary: a duty of non-intervention. Others considers mandatory for the Union to act when Member States fail: a duty to intervene.

Subsidiarity for sustainability 71 Failure to set the correct definition of subsidiarity will lead to “creeping federalism” into Europe which herself is neither a federal system nor in possession of a well thought-out constitution (Vischer, 2002, p. 110). The problem continues after a decade of the European Union since the EU Council has developed “no consensus on the meaning of subsidiarity,” and the EU Commission “never shapes the debate in a fundamental way” (Hecke, 2003, p. 71). This may lead to a situation whereby the EU becomes more powerful and ignores the federal entities within its Member States such as Germany (Fromage, 2017, p. 3). Consequently, the principle of subsidiarity has constantly emerged as the guiding principle of the relationship between the EU and its Member States. On 13 September 2017, President Jean-Claude Juncker delivered his State of the Union Address and said: This Commission has sought to be big on big issues and small on the small ones and has done so. To finish the work we started, I am setting up a Subsidiarity and Proportionality Task Force to take a very critical look at all policy areas to make sure we are only acting where the EU adds value. (European Commission, 2017)

3. Implementing subsidiarity: the federalist way The difficulties that have arisen in implementing subsidiarity in Europe are due to the fact that the European Union is a multi-governance union and is not constituted by a properly drafted Federal Constitution. Member states within the Union remain sovereign without another higher sovereign above them. This differs from a federal system where the federal government retains certain powers over Member States and state laws should not conflict the federal legislations. In Malaysia, for instance, Article 75 of the Federal Constitution provides that state law must be consistent with federal law and will be void in the event of conflict. European Member States adhere to the rules set by the European Commission while acknowledging the principle of superiority of EU law. The subsidiarity principle is seen as synonymous with federalism as it can be weighed conceptually in favour of appropriate power sharing between different levels of government. It is used to ensure that the federal government decides on matters of national importance but not on localized problems. Bayer (2004, p. 1453) supports this when he writes “expansive federal legislative jurisdiction allows the federal government to impose uniform solutions to individualized social problems that differ significantly in their scope and effects across different states”; and if states powers are wide, the federal government will be prevented “from addressing issues of truly national concern”. As such, federalism presupposes subsidiarity and provides the frame in which subsidiarity is exercised to achieve a balance of power and protects the legislative authority of local government. The subsidiarity principle becomes pertinent in Australian federalism, which is undergoing a process of reform. Australian federalism worked until recently

72 Rasyikah Md Khalid due to continual improvement in public administration and intergovernmental relations, as well as structural reform that distributed new roles, responsibilities and governance capacities. Nevertheless, as fears increase over commonwealth involvement over state’s resources, questions have arisen as to whether there is a need to redefine the roles of government and to determine whether a new level of government is needed (Bellamy, 2006). In Australia, there were calls either to increase the number of states within the federation; abolish states and redistribute their functions to the federal and local governments; amalgamate states and local government as a second tier of local government; or develop regional institution as a fourth tier of government (The Federalism Project Griffith University, 2006). Nevertheless, the negotiation is still ongoing, and the decision will be based on issues like political power, public administration and citizen engagement. The roles and responsibility of each level of government will be redefined based on the subsidiarity principle (The Federalism Project Griffith University, 2006). Effective implementation of subsidiarity assumes that the correct level of government can effectively, whether financially or technically, decide on certain matters. Thus it is not surprising in the case of Malaysia that the local government has a very limited source of income, i.e. assessment tax, licenses or permit grants for any trade within its locality, which restrict its capacity to ensure sustainable development activities. For the discussion in Australia, Aroney (2011, p. 216) sees that subsidiarity has “no application to fields of exclusive federal power, virtually none in relation to concurrent heads of power, and in areas beyond this its application is distorted by the Commonwealth’s disproportionate financial powers”. Thus the economics of federalism is pertinent for effective implementation of subsidiarity at the lower level. The federal government shall leave the localized problem to the local level as it satisfies regional variation in preferences, allows experimentation for developing rules and lowers monitoring costs (Calabresi and Bickford, 2011). It is interesting to note that due to the balance of powers that needs to be achieved, the method used to ensure the right power allocations among the different levels of government in Europe differs from the one used in a federal system. In Europe, subsidiarity works alongside other principles like proportionality to ensure that decision making is made by the most effective level. On the other hand, effective implementation of a subsidiarity principle within a federal system is checked by the judiciary. This is because the demarcation of power between the federal and state governments has been agreed upon and is provided by a country’s constitution. The principle of subsidiarity is normally observed in an implicit manner as both governments have decided the best level of government to decide on certain matters during the drafting of the constitution. Thus the question of whether intervention has arisen in a federation and amounted to ultra vires is a matter for judicial review based on its interpretation of the constitutional provisions. Subsidiarity becomes an effective tool for the judicial review process in a federal system to determine the appropriate power allocation between different levels

Subsidiarity for sustainability 73 of government. In Canada, for instance, the courts use subsidiarity to interpret the scope of the federal powers and to resolve uncertainties in areas of concurrent jurisdiction (Bridge, 1999). Judicial review in large federal system like America and Australia has been occupied with determining the correct application of the commerce clause used by the federal government to regulate commerce with other states in America; the federal government has on several occasions regulated intrastate activities that substantially affect commerce or any other federal power. In Cooley v Board of Wardens 53 U.S. 299 (1852) the Supreme Court explained: Either absolutely to affirm, or deny that the nature of [the commerce] power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power. Whatever subjects of this power are in their nature nationally, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. In Pike v Bruce Church 397 U.S. 137 (1970), the Supreme Court further developed a two-tier test in determining the legality of a state law that should fall within the Congress’s Dormant Commerce Clause and held that a state law is invalid if it discriminates against interstate commerce or if the burden on interstate commerce outweighs any state or local benefit. In Australia, several cases have been brought before the court to determine the legitimacy of the Commonwealth government to legislate on state matters through Section 51 of the Constitution by way of commerce clause. In several occasions, the court has interpreted that the Commonwealth can regulate a state corporation by virtue of section 51(xx) on “trading and financial corporation” if trading and finance constitute a large extent of the corporation’s activities [R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190; State Superannuation Board of Victoria v Trade Practices Commission (1982) 150 CLR 282]. Other possible avenues for the Commonwealth to legislate on state matter can be made under Section 51(xxix) on “external affairs”, Section 51(i) on “trade and commerce” and Section51(xxxi) on “acquisition of property” (Kildea and Williams, 2010). Based on these provisions, the Commonwealth enacted the Waters Act 2007 to regulate the water supply activities of a corporatized local council or any constitutional corporation. Carney and Gardner (2009) explain that, since the Act was initiated through Section 51(xx), corporations involved in water supply and services sector must now comply with the water market and water charges rules, provide water information and allow the Murray-Darling River Basin Authority (MDBA) to access their premises. The passing of the Water Act 2007 indicates that the Commonwealth power may be extended to other areas of states’ jurisdiction like land and planning as it also involves corporation and commercial activities. McKay (2008, p. 32) comments that the passing of the Water Act demonstrates “the expansion of federal power through generous judicial interpretation” of Section 51 of the Constitution

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although it does not specifically deal with water resources. In Commonwealth v Tasmania (1983) 158 CLR 1, the Commonwealth government managed to combine its power over interstate trade and commerce and external affairs to prevent the development of the Tasmanian Dam. The power on external affairs can also be used to regulate environmental matters of international concern such as climate change and deforestation. In Malaysia, a clear dualist approach makes any federal attempt to legislate on matters enumerated under the state list through commerce clause impossible. The federal government has to amend the Concurrent Legislative List of the Federal Constitution, for instance, to legislate on fire safety measures, housing and accommodation, as well as controversial water supply and services. These subject matters which were initially listed under the state list need to be repealed or amended in the state list and transferred to the concurrent list (Khalid, 2018). Alternatively, the federal government may legislate on state matters through Article 76(1) for the purpose of implementing an international treaty, to promote uniformity or if requested by the state legislative assembly. The uniformity argument has been invoked in several occasions, especially in natural resources and religious matters; but the state must adopt the federal law as their own before the law can be enforced within the states. As such, there is lack of judicial activism and review on the application of the commerce clause in Malaysia under the Ninth Schedule of the Federal Constitution should the federal government follows the courageous steps made by its counterparts in America and Australia.

4. Subsidiarity, devolution and decentralization Subsidiarity requires any decision to be made at the level where people can be effectively represented and requires local or state government to be more responsive on local problems. As such, subsidiarity has generally been equated with the idea of decentralization and devolution of power. This is because the philosophy behind subsidiarity indicates that the best form of government should be “the least centralized yet still adequate to accomplish the task at hand” (Huffman, 2008). Subsidiarity rarely provides a greater role for the central government but emphasizes localized problem solving and public participation. Subsidiarity also implies decentralization since local governments are more flexible and responsive to local problems (Vause, 1995). This makes them more capable to effectively address the needs and problems of the local community especially in natural resource management (Visser, 2010). Through decentralization, the local government will be more capable to promote co-management and increase local participation. This will increase a sense of ownership, minimizes cost, maximize social benefit and enhance sustainability (Anderson, 2000). Decentralization – either through delegation, power sharing and cooperation – will increase efficiency and benefit the federal system. When subsidiarity moves towards localism, the local government is assumed to be the right level of government to solve localized problems through local participation. Thusvarious concepts have been developed to encourage such participation

Subsidiarity for sustainability 75 such as collaborative decision making or collaborative governance and cooperative or co-management. Collaborative decision making is a joint effort among relevant stakeholders “to improve present management system through increased information exchange among various parties in the community and improved decision support tools” (Rahmah et al., 2002). Such an approach is pertinent as the “traditional command-and-control and prescriptive approaches to the management of natural resources are not providing the solutions to ‘wicked” intractable problems’ (Baines and O’Brien, 2012). In a rather similar vein, co-management refers to “a range of arrangements, with different degrees of power sharing, for joint decision-making by the state and communities (or user groups) about a set of resources or an area” (Berkes, 2009). These concepts are geared towards garnering public participation and a more holistic management of natural resources. Proper mechanisms to ensure effective participation of relevant stakeholders, however, may not be easily attainable in developing or least developed countries as there is a general lack of environmental awareness among stakeholders. They are so accustomed to the “government will do it” perception that they become passive users. It is true that government must do certain things for national or international importance like trade and security, but resources management is a localized subject and differs from one place to another. Continuous top-down governance unsupported by lower government initiatives will lead to inefficient and unsustainable management of natural resources. What is urgently needed is to increase stakeholder’s capacity building together with the NGOs at the lower level to represent the voice of the whole community. They must also get relevant information in order to make informed decisions on certain matters. Despite the benefits of decentralization through subsidiarity, there are also setbacks along its implementation. Layard (2012), for instance, argues that allocating decision-making power to the local level may end up in a “local trap”. By this, he is referring to the domination of the minority but with “social capital” to the effect that local decisions are not being made upon consensus or participation of the majority. Longo (1999) emphasises that there must be a clear guideline when localism is the result of subsidiarity to foster cooperation between the national and local governments. In a similar vein, Visser (2010) understands that the national government fear that more powers need to be devolved to the lower levels, but the local government also fears that such devolution comes with no extra funding and technical support. Such consequences need to be carefully considered as decentralization without legal or financial empowerment may end up in another form of centralization (Ribot, 2003). A combination of top-down and bottom-up governance may avoid such problems and promote greater cooperation between all levels of government (Khalid et al., 2018). This complements the subsidiarity principle since it promotes coherency through intra- and inter-governmental collaboration. Australia, for instance, set up the Council of Australian Government towards that ends, but it has been described as informal and weak (The Federalism Project Griffith University, 2006).

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In Malaysia, Article 95A of the Federal Constitution provides for the establishment of the National Council for Local Government to formulate policies for the promotion, development and control of local government throughout the federation and the administration of any law relating thereto (Rahman et al., 2013). The National Land Council and the National Finance Council were also established under Article 91 and Article 108, respectively, to ensure cooperation between the federal and state governments. It is also interesting to note that the federal government has established the National Water Resources Council in 1998 to streamline and control water resources development and management amongst states. The council, however, is established under neither the Federal Constitution nor other legal provisions, leaving the council with no constitutional or legal power to enforce state governments to comply with its decisions.

5. Subsidiarity for sustainable water resources management Sustainable water resources management (SWRM) is achieved when the water sector adapts to changes and promotes integration and participation. Subsidiarity helps to redefine the role of the different levels of the government in SWRM by identifying the appropriate level of the government that should make the decisions for climate change adaptation, departmental integration and stakeholder participation in all aspects of water resources management. There is an urgent need to change the mindset of top-down government towards bottom-up collective governance and localized problem solving. In this respect, the locals must be equipped with information, financial and technical capacity to effectively participate in the decision-making process. To quote Vischer (2002, p. 51), “ensuring such participation requires more than protecting the abstract legal rights of citizenship; it requires a recognition of the practical and structural impediments to meaningful participation”. Subsidiarity can be used to allocate different tasks to different levels of government and ensure effective multilevel governance in the water sector. The Oxford English Dictionary connotes that “a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level”. Thus, top government becomes involved when the lower bodies prove ineffective to decide on the matter. The European Union provides a general framework for the Member States to implement while the sustainable management of water resources is left to the authorities of a particular river basin. In Australia, the allocation of decision-making power has also been based on subsidiarity, but it is more concerned with the demarcation of powers under the constitution. In this respect, Aroney (2011, p. 217) observes that subsidiarity in Europe focuses on “the question of how the functionalist objectives of the EU can most appropriately be achieved” rather than the purposes and responsibilities of Member States. Within environmental governance in a federal system, the Americans are moving towards the regulatory philosophy of subsidiarity as the best government to decide on environmental matters is the least centralized yet still adequate to solve

Subsidiarity for sustainability 77 local environmental problem (Huffman, 2008). However, environmental governance within a federal system and the application of the subsidiarity principle is not synonymous. This is because federalism divides governmental authority while the application of subsidiarity is not exhausted by considering such power division. For Beabout (2008, p. 215), subsidiarity points to the problem of allocating authority between different levels of government as it encourages all stakeholders to recognize “the importance of participatory approach for cultivating responsible habits”. There is still lack of knowledge and research applying subsidiarity to environmental policy. The decision to assign the correct level of government agency to effectively make decisions on certain matters is also not an easy and straightforward task. Each subject matter requires a certain level of technical capacity and will have various impacts on the area where the decision is made. Such an anomaly can be seen in two important legislations passed by the American Congress which have become the new landmarks of American environmental and cooperative federalism: the Clean Air Act (CAA) of 1970 (US Congress, 1970) and the Clean Water Act (CWA) of 1972 (US Congress, 1972). Through subsidiarity, the Environmental Protection Agency (EPA) sets ambient standards and emission standards for new sources under the CCA, while the state governments set emission standards for existing sources. On the contrary, under the CWA, the EPA sets effluent limitations while the state government is given the liberty to set its own water quality standards. This exemplifies that decision making in environmental federalism does not merely involve giving more powers to the lower level as some matters can be decided effectively at the higher level. This correspond to Oates’s (1982, p. 476) view: The issue is not a simple one of centralization versus decentralization of environmental management; the issue is one of aligning specific responsibilities and regulatory instruments with the different levels of government so as best to achieve our environmental objectives. The Commonwealth and state governments of Australia acknowledge the need to redefine the roles of government in 1992 with the promulgation of the Intergovernmental Agreement on the Environment (Australian Government, 2020a). The agreement encourages cooperative federalism in environmental management and acknowledges the roles of state and local in environmental management. In 1997, the Council of Australian Governments limited the Commonwealth’s roles to matters of genuine national significance like rationalizing existing governmental arrangements for heritage protection and establishing efficient delivery mechanisms and accountability regimes for national environmental programmes of shared interest but not matters of state or local significance such as climate change adaptation (Australian Government, 2020a). The Commonwealth’s decision to pass the Water Act 2007 indicates its seriousness in regulating the Murray-Darling basin which has suffered several droughts in recent years.

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6. Conclusion Although subsidiarity generally works towards decentralization, it needs to be balanced with traditional top-down governance to achieve a holistic and integrated management of water resources. In one study, Huntgens et al. (2011) compared and analysed eight water management regimes in Europe, Africa and Asia and found that top-down governance structure is very much relevant to facilitate participatory processes, to set standards, capacity building, conflict resolution and to provide information that is not available at the grass-roots level. This corresponds with the view that multi-level governance allows something to be done at lower levels while reserving certain capacity to a higher level to allow collective action. This “experimentalist governance” structure involves all levels working together to establish local framework goals with infrastructural support from the central government and assists local units to better perform delegated functions and facilitate regional coordination (Zeitlin and Sabel, 2012, p. 169). The examples in Australia show that the redefinition of the roles of government for sustainable water resources management can be done effectively through the subsidiarity principle, i.e. decision making to be made at the most effective lowest level of government. Subsidiarity remains the guiding principles of decisionmaking power in Europe as required in the Treaty of European Union, and Member States shall decide on the best mechanism to implement it. In a federal state however, subsidiarity becomes a useful tool to redefine the role of government and ensure that the closest and most effective level of government is solving a particular issue or problem. Although subsidiarity implies devolution of power in the cases of Europe and Australia, it may not be done in countries such as Malaysia where there is no local council election as that raises the issue of accountability. What the federal government can do instead is to delegate some administrative duty and financial provisions to local governments to implement adaptation strategies and increase stakeholders’ adaptive capacity towards climate change impact. Subsidiarity will not only imply a decentralization of powers but also empower every level of government to do their best. It is a win-win formula for all parties, and the task of ensuring sustainable development will soon be everyone’s business.

Acknowledgements This study is funded by the Ministry of Higher Education of Malaysia through research grant code TRGS/1/2018/UKM/01/6/3. The valuable comments and helpful input of an anonymous reviewer are also heartily acknowledged by the authors.

Note 1 Deputy Dean and Associate Professor, Faculty of Law, Universiti Kebangsaan Malaysia (The National University of Malaysia).

Subsidiarity for sustainability 79

References Anderson, J. 2000. Four Considerations for Decentralized Forest Management: Subsidiarity, Empowerment, Pluralism and Social Capital. Food and Agriculture Organization of the United Nations, Rome, Italy. Aroney, N. 2011. Subsidiarity: European Lessons for Australia’s Federal Balance. Federal Law Review 39: 213–234. Australian Government. 2020a. Intergovernmental Agreement on the Environment. www. environment.gov.au/node/13008 (accessed 4 April 2020). Australian Government. 2020b. Water Act 2007. https://www.legislation.gov.au/Details/ C2017C00151 (accessed 1 July 2020). Baines, J. & O’Brien, M. 2012. Reflections on the Collaborative Governance Process of Land and Water Forum. Auckland: Ministry for the Environment New Zealand. Bayer, J. 2004. Re-Balancing State and Federal Power: Toward a Political Principle of Subsidiarity in the United States. American University Law Review 53: 1421–1472. Beabout, G. R. 2008. Challenges to Using the Principle of Subsidiarity for Environmental Policy. University of St. Thomas Law Journal 5(1): 210–232. Bellamy, J. A. 2006. Adaptive Governance: The Challenge for Regional Natural Resource Management. In Brown, A. J. & Bellamy, J. A. (Eds.). Federalism and Regionalism in Australia: New Approaches, New Institutions? New South Wales: ANU E Press. Berkes, F. 2009. Evolution of Co-management: Role of Knowledge Generation, Bridging Organizations and Social Learning. Journal of Environmental Management 90: 1692–1702. Bridge, J. W. 1999. Constitutions, Powers and the Doctrine of Subsidiarity. Business Law Review 31: 49–57. Calabresi, G.S. & Bickford, L. D. 2011. Federalism and Subsidiarity: Perspectives from U.S. Constitutional Faculty Working Papers. Northwestern University School of Law, Chicago. Carney, G. & Gardner, A. 2009. The Constitutional Framework for Water Resources Management. In. Gardner, A., Bartlett, R. & Gray, J. (Eds.). Water Resources Law. New South Wales: Lexis Nexis Butterworths. Cocosatu, M. 2012. Principles of Subsidiarity and Proportionality at EU Level, as Expression of National Interests. Acta Universitatis Danabius 8(3): 30–41. EU 2020a. Treaty on European Union 1992. https://europa.eu/european-union/sites/ europaeu/files/docs/body/treaty_on_european_union_en.pdf (accessed 1 July 2020). EU 2020b. Water Framework Directive. https://eur-lex.europa.eu/legal-content/EN/TXT/? uri=CELEX:32000L0060 (accessed 1 July 2020). EU 2020c. European Charter on Local Self-Government. https://rm.coe.int/168007a088 (accessed 1 July 2020). European Commission. 2017. Press Release: Future of Europe: President Juncker Creates Task Force on ‘Doing Less More Efficiently’. Brussels: European Commission. The Federalism Project Griffith University. 2006. Reform of Australia’s Federal System: Identifying the Benefits. New South Wales: NSW Farmers’ Association. Fromage, D. 2017. Subsidiarity as a Means to Enhance Cooperation between EU Institutions and National Parliaments. Brussels: Policy Department for Citizens’ Rights and Constitutional Affairs, European Parliament. Vol. PE 583 131. Giakoumis, T. & Voulvoulis, N. 2018. The Transition of EU Water Policy towards the Water Framework Directive’s Integrated River Basin Management Paradigm. Environmental Management 62: 819–831.

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Hecke, S. V. 2003. The Principle of Subsidiarity: Ten Years of Application in the European Union. Regional and Federal Studies 13(1): 55–80. Huffman, J. L. 2008. The Federal Role in Water Resource Management. NYU Environmental Law Journal 17: 669–702. Huntgens, P., Pahl-Wostl, C., Rihoux, B., Schlüter, M., Flachner, Z., Neto, S., Koskova, R., Dickens, C. & Kiti, I. N. 2011. Adaptive Water Management and Policy Learning in a Changing Climate: A Formal Comparative Analysis of Eight Water Management Regimes in Europe, Africa, and Asia. Environmental Policy and Governance 21: 145–163. Khalid, R.M. 2018. Review of the Water Supply Management and Reforms Needed to Ensure Water Security in Malaysia. International Journal of Business and Society 19(S3): 472–483. Khalid, R.M., Mokhtar, M.B., Jalil, F., Rahman, S.A. & Spray, C. 2018. Legal Framing for Achieving ‘Good Ecological Status’for Malaysian Rivers: Are There Lessons to Be Learned from the EU Water Framework Directive? Ecosystem Services 29, Part B.: 251–259. Kildea, P. & Williams, G. 2010. The Constitution and the Management of Water in Australia’s Rivers. Sydney Law Review 32: 595–616. Layard, A. 2012. The Localism Act 2011: What Is ‘Local and How Do We (Legally) Construct It’. Environmental Law Review 14: 134–144. Longo, M. 1999. Subsidiarity and Local Environmental Governance: A Comparative and Reform Perspective. University of Tasmanian Law Review 18(2): 225–246. Mckay, J. 2008. Water Law in the Australian Federation – The Move Towards Centralism. Zaragoza, Spain: Water Management in Federal and Federal-Type Systems. Oates, W. E. 1982. The New Federalism: An Economist’s View. Cato Journal 2: 473–488. Rahmah, E., Mokhtar, B.M. & Idrus, S. 2002. Collaborative Decision Making Issues in Sustainable Water Resources Management: A Case Study on Langat Basin. International Conference on Environmental Management: Ten Years After Rio: Realising Agenda, 22–23 October, Bangi, Selangor. Rahman, S.A., Othman, M.S.H., Khalid, R.M. & Shawahid, F.M. 2013. Legal Implications of Compulsory Rainwater Harvesting in Malaysia. Journal of Food, Agriculture and Environment 11(3–4): 2077–2079. Ribot, J. C. 2003. Democratic Decentralisation of Natural Resources: Institutional Choice and Discretionary Power Transfers in Sub-Saharan Africa. Public Administration and Development 23: 53–65. Schere, J. 2000. Subsidiarity and Federalism in the European Union. The Fletcher Forum of World Affairs 24: 175–182. Schutze, R. 2009. Subsidiarity after Lisbon: Reinforcing the Safeguards of Federalism? Cambridge Law Journal 68(3): 525–536. Tilindyte, L. 2018. Subsidiarity: Mechanisms for Monitoring Compliance. Brussels: European Parliamentary Research Service, PE 625.124. US Congress 1970. Clean Air Act 1970. US Congress 1972. Clean Water Act 1972. Vause, W. G. 1995. Subsidiarity Principle in European Union Law – American Federalism Compared. Case Western Reserve Journal of International Law 27: 61–81. Vischer, R. K. 2002. Subsidiarity as a Principle of Governance: Beyond Devolution. Indiana Law Review 35: 103–142. Visser, J. D. 2010. Institutional Subsidiarity in the South African Constitution. Stellenbosch Law Review 21: 90–115. Zeitlin, J. & Sabel, C. 2012. Experimentalist Governance. In Levi-Faur, D. (Ed.). The Oxford Handbook of Governance. Oxford: Oxford University Press.

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Strategy for a sustainable decarbonization of the energy sector in Portugal Identification of priority policy measures João Joanaz de Melo,1 Maria J. F. Sousa,2 Alfredo Marvão Pereira,3 Filipa Fernandes,4 António Galvão,5 João Grilo6

1. Introduction The Paris Agreement, the first ever universal, legally binding global climate deal (Bodansky, 2016), has institutionalized a much needed paradigm shift in energy systems thinking and has set out the transition to the decarbonization of the economy. The European Union (EU), one of the world’s largest energy consumers and greenhouse gases (GHG) emitters, was the first major economy to submit its intended contribution to the new agreement and binding target of at least 40% of domestic reduction in GHG emissions by 2030 compared to 1990 (Liobikien and Butkus, 2017). In line with the Paris Agreement objective to keep the global temperature increase to well below 2°C and pursue efforts to keep it to 1.5°C, the EU has committed to carbon neutrality in 2050, and Portugal has recently presented its Roadmap for Carbon Neutrality RNC2050 (PCM, 2019) with the same goal. The RNC2050 identifies and analyses alternative low-carbon economy trajectories for Portugal from a social, technical and economical point of view. Achieving carbon neutrality will require a concerted restructuring of the economy and particularly of the energy sector. In this concern, several issues and fragilities within the Portuguese energy system must be addressed in order to fulfil our transition to a carbon-neutral economy. Although some energy experts consider that Portugal has shown great progress regarding energy policies (ADENE, 2018a), governmental plans so far have shown a lack of ambition and implementation. Plans often lack detailed and comprehensive information, which make results hard to assess (Energy Efficiency Watch, 2013), and there is no long-term, structured strategy or integration among different economic sectors. The provisional National Energy and Climate Plan 2021–2030 (PNEC) (GP, 2019), submitted to the European Commission (EC) in December 2019 after public consultation, shows great ambition regarding GHG reduction and renewable energy targets, and it contains adequate orientations. However, the targets for energy reduction are rather poor: they are based on projections of the PRIMES model for the EC carried out in 2007 that result in no

82 João Joanaz de Melo et al. significant reduction of energy consumption (GP, 2019). Moreover, PNEC does not contain consistent measures to promote energy efficiency and GHG reduction, despite declared goals and orientations (EC, 2019; CNADS, 2019; Melo et al., 2019). In short, although there have been significant steps towards the energy transition, independent analysis shows there is much room for improvement, as well as a significant gap between intentions and tools for energy policy. The general goal of this work is therefore to contribute to the objective of a carbonneutral economy in Portugal in 2050, while changing to a more sustainable lifestyle.

2. Methods Starting from established policies and tools, we endeavour to identify the critical aspects of energy policy, and to develop measures to close the gap between intentions and practice. To this end, we adopted two guiding principles: •

•

A change of our minds and our lifestyle: In the words of Pope Francis (2015), we require an ecological conversion. We live now in a very unsustainable society and should drastically reduce our depletion of natural resources while improving social equity, as has been pointed out by many authors and institutions (e.g. IPCC, 2018; WWF, 2018). The need for a cooperative approach to a complex problem: We are all part of the problem and of the solution: citizens and families (as both consumers and voters), business, government, non-governmental organizations. So we need to involve and address the needs of all those stakeholders.

These principles, together with the analysis of the status of current national and international energy policy, led to this study focusing on two priority targets – energy efficiency and decentralized low-impact energy sources – and the development of a wide-ranging package of unconventional policy measures, with an emphasis on the environmental tax reform. There are several ways to define energy efficiency. We opted to quantify energy efficiency, at the policy and national levels, in terms of energy intensity (quantity of energy required per unit output or activity); this is a combined technical-economic performance indicator, independent from gross domestic product (GDP) variations. International best practice and previous studies (IEA, 2019; MAOTE, 2015) recommend that meaningful efficiency targets be based on energy intensity, globally and by sector. We are not focusing on equipment-specific efficiency indicators. Our methodology encompasses the following stages: 1 2

Identify trends and driving forces of the Portuguese energy system. Review the energy efficiency potential by sector of activity. The review of the energy potential was performed by a combined analysis of statistical data with results from specific energy audits. The available data varies from sector

Sustainable decarbonization in Portugal 83

3 4

5

6

7 8

to sector, but efforts have been made to complement a top-down approach (sectoral analysis, best available technologies) with bottom-up information from organization data and energy audits. Evaluate national energy and climate policies. Key policy options, their successes and failures were identified. Review present energy market distortions in Portugal. Market distortions were identified through the analysis of energy-related legislation. The distortions were then rated according to their social, environmental and economic impact, with the following criteria: “good” distortions are those that channel funding to social causes or overcome barriers to entry in the market of lowimpact technologies; “bad” distortions channel unnecessary funding to well established companies, or fund high-impact technologies, or correspond to incentives that create an added burden to consumers or taxpayers without equivalent benefits. Review international best practice on energy policy. Following the methodology used by Dinges et al. (2017), energy policies and measures from a selected group of countries were reviewed and the identified measures were classified according to its sectoral application (households, industry and transport). Dialogue with stakeholders. At all stages, dialogue with interested parties was highly valued: the stakeholders consulted included representatives of business and industry, consumers, energy utilities, the scientific community, political parties and government: their views were systematically considered in the proposal design. Develop policy proposals. The aim is to bridge the gaps between intentions and practice. Each proposal included the calculation of energy and budgetary implications. Assess macroeconomic effects. This analysis was conducted for the overall policy package, based on previous studies (Pereira and Pereira, 2019).

Results of stages 1 to 5 are reported in section 3 of the chapter. Policy proposals and their evaluation are reported in section 4. Rebound effects are not studied in detail but are considered in two ways: (1) the choice of measures is deliberately related to a parsimonious use of resources; (2) the macroeconomic indicators assume rebound effects implicitly. Work in progress (not detailed in this paper) includes the analysis of the socioeconomic and environmental impacts of the proposed measures.

3. Results and discussion 3.1. The Portuguese energy system Key features and trends of the Portuguese energy system can be described as follows (DGEG, 2019): •

The country has a high external dependence, with imported coal, oil and natural gas accounting for 75% to 80% of gross energy consumption.

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•

Energy demand has been decreasing slowly, mainly due to technological renewal, with a moderate increase in electricity demand. In many sectors, especially industry, energy consumption fell during the economic crisis but was rising again (until the COVID-19 pandemic). Energy intensity improved slowly since 2005 but stagnated in recent years, around 5.2 TJ/M€’2011 (terajoule per million euro GDP, 2011 prices) for primary energy and 3.6 TJ/M€’2011 for final energy (still higher than the European average, despite a favourable climate and relatively low industrialisation; see Figure 6.1). GHG emissions decreased slowly between 2005 and 2014 but show an upward trend in recent years. The share of renewable energy sources has increased steadily in the past 15 years, although it is not yet clear whether European targets for 2020 will be fully met. Portugal has an excellent power grid security level but with excess installed capacity, causing unnecessarily high electricity cost (Ribeiro et al., 2019).

• •

• • •

3.2. Review of energy savings potential The economically interesting potential for energy savings, through energy efficiency measures, reaches 20–25% of present consumption, across all sectors reviewed: housing, services, industry, and transport. Technological savings potential (theoretically possible with current technology) is often close to 50% of consumption. Table 6.1 presents the identified energy efficiency potential by type of energy efficiency measure for the residential and industry sectors. It is estimated

7.0

TJ/ M€ ‘2011

6.0 5.0 4.0 3.0 2.0 1.0

Primary energy intensity

Figure 6.1 Primary and final energy intensities of the Portuguese economy Source: Adapted from DGEG (2019).

2017

2016

2014

Final energy intensity

2015

2013

2012

2011

2009

2010

2008

2007

2006

2004

2005

2003

2002

2001

1999

2000

1998

1997

1996

1995

0.0

Sustainable decarbonization in Portugal 85 Table 6.1 Energy efficiency potential estimates for the residential and industrial sectors Sector

Type of measure

Energy savings potential

Investment (€M)

(PJ/year) (%base)* (€M/year) Residential1 Behavioural change Equipment renovation Solar water heating Building rehabilitation Total Industry2 Payback period ≤3 years 3 years