Module 6: legal frameworks for cooperation beyond national borders Developing legal and institutional frameworks for invasive alien species

Module 6:

legal frameworks for cooperation beyond

national borders

Developing legal and institutional frameworks

for invasive alien species

legal frameworks for cooperation beyond national borders2

what this module covers

1. the legal mandate for transboundary cooperation

2. cooperation provisions under international instruments

3. incorporating IAS into regional processes

4. components of regional cooperation and collaboration

5. interface between national regulations and the international trade regime

what decision-makers need to know about invasive

species

what decision-makers need to know about invasive

species Module 1Module 1

laying the foundations for effective national frameworks

laying the foundations for effective national frameworksModule 2Module 2

preventing biological invasions

preventing biological invasions Module 3Module 3

responding to biological invasions

responding to biological invasions Module 4Module 4

getting results: compliance, enforcement and liability

getting results: compliance, enforcement and liability Module 5Module 5

legal frameworks for cooperation beyond borders

legal frameworks for cooperation beyond borders Module 6Module 6


international mandate for transboundary cooperation on IAS

scope of the “duty to avoid transboundary harm”?

–core of the obligation is to exercise “due diligence” in taking appropriate measures to prevent or minimise the risk of transboundary harm

–States to act reasonably and in good faith and ensure that public and private activities within its jurisdiction and control do not cause environmental harm (a) in other States (b) in areas beyond national jurisdiction


33 International Plant Protection Convention (IPPC) to prevent spread and introduction of plant pests through sanitary and phytosanitary measures. Regional implementation network (e.g. Phytosanitary Convention for Africa)

International Plant Protection Convention (IPPC) to prevent spread and introduction of plant pests through sanitary and phytosanitary measures. Regional implementation network (e.g. Phytosanitary Convention for Africa)

44 World Organisation for Animal Health (OIE): adresses pests/diseases of animals through Animal Health Codes that set standards for import/export procedures

World Organisation for Animal Health (OIE): adresses pests/diseases of animals through Animal Health Codes that set standards for import/export procedures

55 World Health Organisation International Health Regulations: toprevent, protect against, control and provide public health response to international spread of disease

World Health Organisation International Health Regulations: toprevent, protect against, control and provide public health response to international spread of disease

22 Marine and freshwater instruments (including Ballast Water Convention)Marine and freshwater instruments (including Ballast Water Convention)

11 Convention on Biological Diversity and other biodiversity-related instruments (Ramsar, Migratory Species Convention, CITES)

Convention on Biological Diversity and other biodiversity-related instruments (Ramsar, Migratory Species Convention, CITES)

cooperation requirements under global instruments addressing IAS


The CBD...

• requires co-operative approaches to underpin national legal frameworks

• specifically mandates consideration of cross-border impacts, including through EIA procedures

• States should recognize the risk that activities within their jurisdiction or control may pose to other States as a potential source of IAS (GP4 §4)

• A State’s response … may require a cooperative effort between two or more countries (GP9 §4)

Rana catesbiana


The IPPC...

• framework for international co-operation to prevent introduction of pests of plants and plant products and promote measures for their control

• may cover all IAS that meets its definition of ‘pest’ and cause direct/indirect damage to wild plants/the natural environment

• mandates information-sharing and reporting of incursions

• mechanisms for regional harmonisation

depending on their focus, can contribute to mainstreaming IAS,

especially where:

ecosystems are shared

co-operative arrangements between different bodies in the region are

already operational

national capacity is limited: resources and expertise can be pooled

addressing IAS through existing regional processeshigh number of regional agreements and organisations already in place to address different issues (economic cooperation, trade, river management, nature conservation....)


AFRICAN CONVENTION ONTHE CONSERVATION OF NATUREAND NATURAL RESOURCES

Maputo, Mozambique (11 July 2003)Amending 1968 Algiers Convention

Art. VIII.1.(b) The Parties shall take all necessary measures for the protection, conservation, sustainable use and rehabilitation of vegetation cover. To this end they shall:

b) take concrete steps or measures to control fires, forest exploitation, land clearing for cultivation, grazing by domestic and wild animals, and invasive species;

Article XXII. CO-OPERATIONParties shall co-operate between themselves and, where appropriate and possible, with other States:2.e) whenever a natural resource or an ecosystem is transboundary, the Parties concerned shall undertake to cooperate in the conservation, development and management of such resource or ecosystem and if the need arises, set up interstate commissions for their conservation and sustainable use;2.f) the Parties shall, prior to the export of hazardous substances, or of alien or modified organisms, undertake to secure the prior informed consent of the importing, and where appropriate, transit States.

Integrated Committee of Ministers oversees coordination and harmonisation e.g. in trade and industry, food, agriculture and natural resource sectors

IAS prevention and cooperation referenced in Fisheries Protocol 2001, Forestry Protocol 2002

SADC Biodiversity Support Programme co-ordinating IAS guidelines for the region

national SADC committees can support IAS programmes e.g. Swaziland SADC committee has assisted development of an IAS database and establishment of coordination structures to deal with IAS

IAS and the Southern African Development Community (SADC)


components for regional cooperation and collaboration

• sharing of information and expertise

• standard setting and harmonisation

• EIA and prior notification

• regional strategy development

• institutional support for capacity-building


sharing of information

types of information to be shared:

• development of inventories and databases including species (native & introduced) distribution data

• incident lists and case studies

• potential threats to neighbouring countries

• information on taxonomy, ecology and genetics of IAS

• prevention and control methods where available

• national and regional guidelines

• national import regulations and treatment rules

• national pathway measures

http://www.eppo.org/STANDARDS/bioenergy.htm

NPPOs should make relevant Departments aware of risks posed by IAPs and warn them against such practices. “The planting of IAPs for energy production should not be recommended. If IAS are planted as a bio-energy crops, a risk-based approach to avoid the spread into unintended habitats should be adopted.”

regional standard setting and harmonisation

The energy strategies of several EPPO countries recommend planting bioenergy crops: some recommended plants are included in the EPPO List of Invasive Alien Plants (IAPs).

example: European and Mediterranean Plant Protection Organisation (EPPO) Council recommendation on plants for renewable energy and Invasive Alien Plants (09/2007)


EIA and prior notification

a SADC State party must not introduce exotic species or genetically modified species to shared aquatic ecosystems, including the full extent of the river basin, unless the affected State parties agree to the introduction. State parties are also required to establish standard guidelines and regulations for the application of environmental impact assessments.

mandated under Maputo Convention and SADC Fisheries Protocol 2001

(Leigh 2003)


interface between national regulations and the international trade regime

World Trade Organisation rules and disciplines established by a series of agreements, including:

– Goods: GATT (General Agreement on Trade and Tariffs) as elaborated upon by WTO-SPS and TBT Agreements

– Service: GATS (General Agreement on Trade in Services)

– Intellectual Property: TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights)


World Trade Organisation: basic rules

1994 Uruguay Round of Agreements aim to

avoid disguised barriers to trade.

Not directly concerned with environment

GATT Art. XX

exceptions may be permitted for measures

‘necessary to protect human, animal and plant life or health’

• international framework to avoid measures for the protection of human, animal or plant health or life against risks from entry, establishment or spread of pests, diseases or disease-causing organisms being used as disguised barriers to trade

• promotes harmonisation: recognises 3 standard-setting organisations incl. IPPC and OIE. No specifically environmental standard-setting body

WTO Agreement on the Application of Sanitary and Phytosanitary Measures

• national SPS measures may be applied to extent necessary to protect these objectives, based on scientific principles and justified by risk assessment if not based on international standards.

• not to be maintained without sufficient scientific evidence (Art 2.2)


precautionary approach: explicit in biodiversity-related agreements but only implicitly referenced in international trade rules. No common understanding of its application in trade-related context: need for case-by-case approach

competent authority reviews science-based risk assessment to determine if potential risks associated with import/pathway are acceptable with regard to national policies and priorities for protection of environmental, agricultural and public health. Measures selected need to be technically justified.

there is scope for « provisional measures » under SPS Agreement pending further assessment of risk – but not to be used as delaying tactic

use of precaution & risk assessment in national measures


national SPS measures that prohibit entry or impose other trade-related restrictions must be:

non-discriminatory and transparent

consistent (e.g across different pathways by which same pest could be introduced; between national/int’l trade)

as least-trade restrictive as possible

design indicators – when no standard available or a stricter measure required


thank youthank you

Documents

Module 6: legal frameworks for cooperation beyond national borders Developing legal and institutional frameworks for invasive alien species