Russian and Canadian Legal Frameworks on the Protection of the … · 2018-06-20 · Russian and Canadian Legal Frameworks on the Protection of the Arctic Biodiversity from Invasive

Russian and Canadian Legal Frameworks on the Protection of

the Arctic Biodiversity from Invasive Alien Species

University of Eastern Finland

Law School

Master’s Thesis

28 April 2018

Writer: Maksim Lavrik, 285280

Supervisor: Yulia Yamineva

II

Abstract

UNIVERSITY OF EASTERN FINLAND

Faculty

Social Sciences and Business Studies

Unit

Law School

Author

Maksim Lavrik

Name of the Thesis

Russian and Canadian Legal Frameworks on the Protection of the Arctic Biodiversity from

Invasive Alien Species

Major

Environmental and Climate

Change Law

Description

Master’s thesis

Date

28 April

2018

Pages

85

Abstract

The effects of climate change are becoming critical as rising temperatures threaten the resilience of vulnerable communities and the

environment. No more can this be seen than in the case of the Arctic. Although climate change can open new opportunities for economic development, it also risks making ecosystems and communities more vulnerable. As temperatures continue to rise, ecosystems are

beginning to change and there is a prediction of rise in the amount of invasive alien species (IAS) entering the Arctic. Such invasive

migrations pose biodiversity threats and interferences with traditional community activities. Thus, this master’s thesis compares the

legislation of both Russia and Canada in order to assess the adequacy of biodiversity protection in the Arctic from IAS.

Article 8 (h) of the Convention on Biological Diversity (CBD), to which both Canada and Russia are parties, acts as an umbrella norm

for international biodiversity commitments against IAS, while other international instruments, both hard law and soft law, general and

Arctic-specific contain provisions relevant to the issue. Biodiversity protection from IAS enhances the resilience of ecosystems, which

is a non-climate mean for the climate change adaptation of ecosystems.

This master’s thesis seeks to highlight that Russia and Canada do not yet have comprehensive legal frameworks for biodiversity

protection from IAS either in their general or in their Arctic-specific legislation. Nevertheless, the IAS problem is, to some extent,

framed within the legislation of each country. These countries use a diverse range of legal and policy documents towards the issue,

combining different instruments including sectoral regulation (aquatic, quarantine, border control, and other sectors), establishing of

lists of IAS, and others. Both countries have the capacity to use sources of general regulation to protect the Arctic’s biodiversity from threats of IAS. Some sub-national entities of comparing countries established their own unique regulation on IAS which could be used

as a model for regulation in Arctic regions.

The constitutional arrangements are crucial, both for implementation of international commitments of the countries, and establishing

their legal frameworks. However, establishing federal environmental policy in Canada has proven problematic given each province has

such strong legislative powers. For example, provinces like Ontario have comprehensive IAS law with concrete mechanisms and strict

sanctions, while other Canadian provinces such as Quebec provide an example of interjurisdictional regulation towards the IAS problem

in cooperation with the states in the United States like Vermont and New York. In Russia, the federal level is authorized to establish federal environmental policy, while the environmental law is in a joint jurisdiction of the federation and the regions (subjects). Current

federal law and policy documents in Russia concern IAS problem. Subjects of the Russian Federation launch their own regulation, on

the one hand, implementing federal policy and, one the other hand, reflecting regional specificity. Thus, the Sakhalin Region concerns

the problem of ballast water. Another Russian subject – the Ulyanovsk Region uses incentives instead of command and control methods

towards the problem. According to the regulation in the region, an absence of IAS on the territory of a settlement is a requirement for

participation in the regional competition for the best settlement.

This thesis seeks to offer several recommendations for the future development of legal and policy frameworks on IAS.

Key words

Biodiversity law, climate change law, adaptation to climate change, invasive alien species, Arctic, Russia, Canada

III

TABLE OF CONTENTS

Abstract ..................................................................................................................................II

TABLE OF CONTENTS .................................................................................................... III

REFERENCES .................................................................................................................... VI

ABBREVIATIONS .......................................................................................................... XIV

FIGURES AND TABLES ................................................................................................ XVI

CHAPTER 1. INTRODUCTION .......................................................................................... 1

1.1 Problem statement .................................................................................................. 1

1.1.1 Problem overview ...................................................................................... 1

1.1.2 Importance of the problem......................................................................... 2

1.1.3 The previous studies by others and the possible contribution of the

master’s thesis to the existing knowledge .......................................................... 2

1.2 Research objective and research questions ............................................................ 3

1.2.1 Planned achievement ................................................................................. 3

1.2.2 Main research question .............................................................................. 3

1.2.3 Sub-research questions .............................................................................. 3

1.3 Methods .................................................................................................................. 3

CHAPTER 2. THE SCIENCE AND REGULATION OF BIODIVERSITY PROTECTION

FROM INVASIVE ALIEN SPECIES................................................................................... 5

2.1 The science on biodiversity protection from invasive alien species ...................... 5

2.2 Regulation of biodiversity protection from invasive alien species ........................ 8

2.2.1 International regulation of biodiversity protection from invasive alien

species ................................................................................................................. 8

2.2.2 Regional and national approaches to regulation of biodiversity protection

from invasive alien species ............................................................................... 13

2.2.3 Climate change adaptation and its nexus with the regulation of

biodiversity protection from invasive alien species.......................................... 15

IV

2.2.4 Regulation of invasive alien species in the Arctic ................................... 19

2.3 Conclusion............................................................................................................ 22

CHAPTER 3. A LEGAL FRAMEWORK ON INVASIVE ALIEN SPECIES IN CANADA

............................................................................................................................................. 23

3.1 General outline ..................................................................................................... 23

3.2 Canadian legislation on invasive alien species .................................................... 26

3.2.1 Federal legislation.................................................................................... 26

3.2.2 Legislation of provinces .......................................................................... 29

3.3 Arctic-specific Canadian legislation relevant to the protection of Arctic

ecosystems from invasive alien species ..................................................................... 32

3.4 Conclusion............................................................................................................ 35

CHAPTER 4. A LEGAL FRAMEWORK ON INVASIVE ALIEN SPECIES IN RUSSIA

............................................................................................................................................. 37

4.1 General outline ..................................................................................................... 37

4.2 Russian legislation on invasive alien species ....................................................... 40

4.2.1 Federal legislation.................................................................................... 40

4.2.2 Legislation of the subjects of the Russian Federation ............................. 46

4.3 Arctic-specific Russian legislation relevant to the protection of Arctic ecosystems

from invasive alien species ........................................................................................ 50

4.4 Conclusions .......................................................................................................... 54

CHAPTER 5. COMPARISON OF RUSSIAN AND CANADIAN LEGAL

FRAMEWORKS ON INVASIVE ALIEN SPECIES ......................................................... 57

5.1 General remarks on comparative law analysis ..................................................... 57

5.2 General remarks on comparative environmental law........................................... 61

5.3 Comparison of federal (national) legal frameworks on invasive alien species in

Russia and Canada ..................................................................................................... 63

5.4 Comparison of regional (sub-national) legal frameworks on invasive alien species

in Russia and Canada ................................................................................................. 66

V

5.5 Comparison of the Arctic-specific legislation relevant to the protection of

ecosystems from invasive alien species in Russia and Canada .................................. 68

5.6 Conclusion............................................................................................................ 72

CHAPTER 6. ASSESSMENT OF ADEQUACY OF EXISTING LEGAL FRAMEWORKS,

CONCLUSIONS AND RECOMMENDATIONS BASED ON THE COMPARISON ..... 74

6.1 Assessment of adequacy of existing legal frameworks and conclusions ............. 74

6.2 Recommendations based on the comparison ....................................................... 82

VI

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XIV

ABBREVIATIONS

AEPS Arctic Environmental Protection Strategy

AISR Aquatic Invasive Species Regulations

AMAP Arctic Monitoring and Assessment

Program

AWPPA Arctic Waters Pollution Prevention Act

BEAC Barents Euro-Arctic Council

BNA British North America

BWM International Convention for the Control

and Management of Ships’ Ballas Water

and Sediments

CAFF Conservation of Arctic Flora and Fauna

CAO Code of the Russian Federation on

Administrative Offences

CBD Convention on Biological Diversity

COP Conference of the Parties to the Convention

on Biological Diversity

EEZ Exclusive economic zone

EPPR Emergency Prevention, Preparedness, and

Response

EU European Union

GATT General Agreement on Tariffs and Trade

GHG Greenhouse gases

IAS Invasive alien species

ICJ International Court of Justice

IUCN International Union for Conservation of

Nature

NEAFC Northern Atlantic Fisheries Cooperation

NOK Norwegian Krone

PAME Protection of the Arctic Marine

Environment

XV

RRAP Lake Champlain Basin Rapid Response

Action Plan for Aquatic Invasive Species.

UNCHE United Nations Conference on the Human

Environment

UNCLOS United Nations Convention on the Law of

the Sea

UNFCCC United Nations Framework Convention on

Climate Change

USA, US United States of America

USSR Union of Soviet Socialist Republics

WTO World Trade Organization

XVI

FIGURES AND TABLES

Figure 1. Canadian Provinces and Territories

Figure 2. Russian Arctic Zone

Table 1. Federal (national) legal frameworks on IAS in Russia and Canada

Table 2. Regional (sub-national) legal frameworks on IAS in Russia and Canada

Table 3. The Arctic-specific legislation relevant to the protection of ecosystems from IAS in

Russia and Canada

1

CHAPTER 1. INTRODUCTION

1.1 Problem statement

1.1.1 Problem overview

The Arctic is the region, where the impact of climate change on nature and societies is

critical. This does not only open new opportunities for economic development (natural

resources extraction, routes for transportation, new lands for agriculture and other

livelihoods), but also makes ecosystems and living conditions more vulnerable (extinct ion

of species living in ices, risks of flooding and other natural disasters, changes for traditiona l

livelihoods of indigenous people, destruction of buildings, which were constructed under

other climatic circumstances)1.

According to Key Finding 6 of the Report for Policymakers by Conservation of Arctic Flora

and Fauna working group of the Arctic Council, nowadays the amount of invasive alien

species (IAS) in the Arctic is insignificant but considering climate change and increasing

human activity risks of biodiversity threat by IAS are increasing2.

The threat for Arctic biodiversity from IAS and readiness of existing legislation in two Arctic

states – Russia and Canada – for the appropriate response to the issue is the main problem

which is in focus of the master’s thesis.

The introductory chapter of the master’s thesis, first, outlines the problem statement, then

describes research objective, research questions, and methods. Chapter 2 shows the science

and regulation of biodiversity protection from IAS including international, regional and

national regulation, its nexus with climate change adaptation and specific of regulation of

the issues in the Arctic. Chapters 3-5 of the master’s thesis describe legal frameworks on

IAS in Russia and Canada and their comparison, wrapping up by chapter 6 which focuses

on an assessment of the adequacy of existing Russian and Canadian legal frameworks,

conclusions and recommendations based on the comparison.

1 Korzun 2014, p. 38-43 (Корзун 2014, с. 38-43). 2 Conservation of Arctic Flora and Fauna: Key Findings of the Report for Policy Makers. 02.11.2017.

2

1.1.2 Importance of the problem

IAS recognized as the second most important threat to biodiversity after habitat loss3. Even

though in the Arctic this problem is not as significant as in other places of the planet, IAS

are already recognized in some Arctic territories. Examples include non-native plant species

in Canadian Arctic, nine non-native plant species in Svalbard, Nootka lupin in Iceland

(introduced to control erosion, but now is recognized as a threat for heathland vegetation),

Pacific red king crab in Norway and Kola Peninsula4.

Climate change and increasing human activity can lead to migration of existing non-native

terrestrial species from sub-Arctic to the Arctic, coming- in of alien species by unmanaged

ballast waters, ship hulls and drilling rigs and import of diseases and pathogens5.

While prevention ecosystems from alien species is a better option than combating with

already existing invasive plants and animals6, the assessment of existing regulation for such

prevention and the necessity to improve it seems important. Canada and Russia are

significant countries in the Arctic region, combining crucial share of territories. The

development of the North Sea Route from China through or closer to Russian territory is

also one of the factors, which makes researching the topic important.

1.1.3 The previous studies by others and the possible contribution of the master’s thesis to

the existing knowledge

The issues of interconnection between climate change and biodiversity and correlating legal

regimes are in focus of environmental law and policy literature.7 Different aspects of alien

species problems including Arctic region are also researched8. The contribution of this paper

to the existing knowledge will be in the assessment of existing Canadian and Russian

regulation concerning the describing problem in their comparison, which has not been

conducted before.

3 Ibid. 4 Ibid. 5 Ibid. 6 Ibid. 7 Trouwborst 2013, p. 298-324. 8 Hansen 2016, p. 38-43.

3

1.2 Research objective and research questions

1.2.1 Planned achievement

The planned outcome of the master’s thesis is the assessment of the existing legisla t ive

framework in Russia and Canada concerning the protection of Arctic biodiversity from IAS.

1.2.2 Main research question

In order to achieve planned outcome, the master’s thesis poses the following main research

question:

• To what extent the current legal frameworks in Canada and Russia are adequate for

protecting the Arctic from IAS and how do they compare in terms of scope and

approaches?

1.2.3 Sub-research questions

The master’s thesis poses following sub-research questions in order to answer the main

research question:

1. What are the general and Arctic-specific legal frameworks on biodiversity protection

from IAS in Russia and Canada?

2. How do Russian and Canadian legal frameworks on IAS compare in terms of scope

and approaches?

3. To what extent the current legal frameworks in Canada and Russia are adequate for

protecting the Arctic from IAS and how can they be strengthened?

1.3 Methods

The problem of invasive species in the Arctic region in the era of climate change is complex

in nature.

Russia and Canada were chosen for comparison because, on the one hand, they have

similarities (in terms of territory, geographical and climatic conditions, and federal

governing systems) which may comparison as such possible. On the other hand, the countries

have differences (in Arctic policy, geography, traditions of governing and legal

development) which combining with similarities can provide fruitful outcomes by

comparison. Possibility to use relevant data in Russian and English is also one of the reasons

why I choose these countries for comparison.

4

The master’s thesis uses different types of methods to answer sub-questions. First, the thesis

applies doctrinal approach towards Russian and Canadian legal frameworks. Then, master’s

thesis uses comparative law methods to compare Russian and Canadian legal frameworks in

terms of their scope and approaches. Finally, assessment of the adequacy of existing legal

frameworks and recommendations for their development will be done (policy approach)

appreciating the potential and limitations of comparison.

The doctrinal approach focuses on the question what the norms are and how they are

implied9. Comparative analysis requires searching for similarities and differences between

comparing legal elements for better understanding their legal features. Subsections 5.1 and

5.2 describes the methodology of comparative law approach in more details. Policy

approach, in particular, focuses on modification of existing norms towards better

regulation10.

9 Bodansky 2010, p. 6. 10 Ibid. p. 7.

5

CHAPTER 2. THE SCIENCE AND REGULATION OF BIODIVERSITY

PROTECTION FROM INVASIVE ALIEN SPECIES

2.1 The science on biodiversity protection from invasive alien species

As K.C. Lewis and R.D. Porter claim IAS can be described as species which are not native

for the location and which cause or can with a high degree of certainty cause harm to

biodiversity, human health, or economy, and only IAS which cause harm require

regulation11.

The following traits characterise the invasiveness of species: high productive capacity,

competitive advantages over native species, their history (one can suggest that if species

were not native originally, they have better chances to be naturalised at new territories), their

ability to fashion and flourish at the new (even poor) environment12. Despite natural

processes and traditional types of human activity (as traveling), new-coming challenges and

developments as climate change and bioengineering can boost the transition of species into

invasive types13. Thus, changing climate gives a competitive advantage to species, which

can adapt to the new environment and genetic modifications create types of species for

example plants, which are resistant to pests and that is why, receive more capacities to

become invasive ones14.

Historically ones of the first examples of IAS are an introduction of rabbits from Britain to

Australia and aphids by grapevines importation from North America to Europe in XIX

century. Thus, 24 rabbits, which had been imported for hunting purposes to Australia in the

middle of XIX century, already after a decade achieved more than 14 000 species in their

population, then became recognised as pests and now recovery from rabbits’ harm costs 1

billion of Australian Dollars every year15. The other example is occasionally imported

aphids, which destroyed more than 1 million hectares of grapevines in France not counting

other European countries. Those cases brought into life an idea of monitoring of species and

restrictions in regulation16.

11 Lewis – Porter 2014, p. 172. 12 Ibid, p. 173. 13 Ibid, p. 174. 14 Ibid, p. 174. 15 Riley 2005, p. 323. 16 Ibid, p. 323.

6

Classifications of IAS follows different criteria. Thus, one of the criteria is an impact of

species on the environment. In this term, IAS could be: 1) IAS modifying habitat, 2) IAS as

pests and diseases, 3) IAS hybridizing with native species (which, nevertheless, can lead to

the creation of new species either aggressive towards natives or not).

An intention of mediums to introduce the species into the new environment is another

criterion for the classification. On this criterion, two types of IAS can be distinguished: IAS

which are introduced accidentally (as in situations with ballast water) or deliberative ly

(introducing of species for hunting, homesickness or other purposes). Such characterist ics

as varieties of species with invasiveness potential, varieties of mediums, means of

transportation and introduction make regulation of IAS difficult17.

The specifics of location are also what matters for regulation. Thus, highly diverse

ecosystems with the competitiveness of native species for resources are more stable against

IAS than fragile ecosystems18 like the Arctic region, which is in focus of the thesis.

In addition, establishing of new policies and technologies could lead to the conflicts with the

realization of the idea of the necessity of biodiversity protection against IAS. Thus, climate

change mitigation policies aimed at a shift towards renewables such as bioenergy could

create new threats in light of IAS problem. For policy of increasing bioenergy, life cycle

circles of plants are sufficient in terms of GHGs emissions, that is why selection of plants is

conducting on such a criteria as a rapid growth, high seed production, and ability to flour ish

in different environmental conditions, which also lead to cultivation of plants with high level

of invasiveness potential. The escape of such species into the environment could be the

creation of IAS problem for local ecosystem19.

Further, the section provides positions of science on IAS issues in the Arctic concerning

climate change.

17 Ibid, p. 326. 18 Lewis – Porter 2014, p. 176. 19 Ibid, p. 191.

7

Global warming is stronger in the Arctic region than elsewhere and all climate models

predict that the trend will continue20. Just for the period from 1980 to 2012, the Arctic region

lost 75 % of its summer sea ice21. Climate change in the Arctic, on the one hand, opens new

opportunities for tourism, navigation, and natural resources extraction22. On the other hand,

it threatens the Arctic ecosystems and livelihood of the local population 10 % of which is

indigenous communities relying on hunting, fishing and herding23.

The impact of climate change on the Arctic ecosystems is of dual nature. While some species

can (temporary) benefit from changes climate (as some migratory birds)24, mainly the impact

could be adverse. Thus, according to some studies, longer ice-free summers would cause

more stress for polar bears, which will negatively affect their reproductive capacity25. The

Arctic cod, which is in a food chain of polar bears, will change their habitat26. These and

other factors will lead to 2/3 decline of the population of the polar bear by 205027. Climate

change driven change of habitat of killer whales will be a new threat for bowhead whales,

belugas, and narwhals28.

As the beginning of the chapter mentioned, as for now the problem of IAS for the Arctic is

not significant. Notwithstanding, species which are not native to the Arctic are already

existed in the region. The subsection outlines further the problems concerning Arctic non-

native Barents Sea snow crab.

In the area of Svalbard (Spitsbergen) and on the continental shelf of Russia and Norway, the

population of Barents Sea snow crab (Chionoecetes opilio) is recognized. This type of crab

is non-native for those territories, but its origin and the way of transportation is not well

established. According to some assessments, snow crab is a potentially important source of

income and could lead to yearly Norwegian profit as 7,5 billion NOK.

20 US National Research Council, The Arctic in the Anthropocene: Emerging Research Questions (National

Academies Press, 2014), available at http://www.nap.edu/catalog/18726 21 Ibid. 22 Koivurova, Arctic Resources: Exploitation of Natural Resources in the Arctic from the Perspective of

International Law in book: Morgera - Kulovesi (eds). Research Handbook on International Law and Natural

Resources. Edward Elgar, 2016, pp. 349. 23 Ibid. 24 Trouwborst Journal of International Wildlife Law & Policy. 2013, p. 1-40. 25 Byers – Baker 2013, p. 174. 26 Ibid, p. 174. 27 Ibid, p. 174. 28 Ibid, p. 177.

8

The possible profit leads to the necessity of effective management, which is challenging by

disputable rights over natural resources in Svalbard (Spitsbergen) and the fact that stocks are

shared between Russian and Norwegian spheres. The discussion on the status of snow crab

as IAS is also important. According to H.S.B. Hansen, the facts that human introduction of

the animal is not proven and the threat to the ecosystem is not recognized do not allow

defining Barents Sea snow crab as IAS and that is why Norway and Russia do not have any

obligations under the CBD and UNCLOS concerning the treatment to this crab as IAS.29

Notwithstanding, H.S.B. Hansen claims that precautionary principle as a guiding idea of

bilaterally established Join Russian-Norwegian Fisheries Commission30 should be in a

substance of attitude towards discussing spice31.

The case of Barents Sea, on the one hand, shows the difficulties in establishing origin and

way of introduction of non-native species. In case of uncertainties of the impact of the spice

on local biodiversity and prominent profit of states based on the industrial use of such spices,

situations, as described above, construct obstacles in the protection of Arctic ecosystems. On

the other hand, the example points out the importance of precautionary principle, risk

assessment and bilateral and multilateral cooperation of states and other stakeholders in

environmental issues.

The next section shows how existing regulation reflects provisions of the science on IAS.

2.2 Regulation of biodiversity protection from invasive alien species

2.2.1 International regulation of biodiversity protection from invasive alien species

The dilemma between biodiversity protection, on the one hand, and economic activity and,

for example, climate change mitigation (as in case of bioenergy), on the other hand, not

necessarily solves in favour of biodiversity. This fact combining with the complexity of IAS

problem leads to the situation that legal frameworks towards IAS are quite diverse. The

section will illustrate this.

29 Hansen Marine Policy 2016, p. 38-43. 30 Join Russian-Norwegian Fisheries Commission: Regulations. 31 Hansen Marine Policy 2016, p. 40.

9

The regulatory approaches towards IAS problem are different and exist on different levels :

international, regional (supranational), national and subnational. First, the subsection

describes international principles and regulation based on the provisions of Convention on

Biological Diversity (CBD) and other treaties and international soft law instruments, then

the subsection outlines the European Union (EU) norms towards IAS, wrapping up by

examples of the USA regulation both at federal and state levels. Despite the EU and the US

regulations are not related to legislation of the countries, which are in focus of the thesis,

they can enlighten the landscape of possible models of IAS regulation.

Established at the Earth Summit (UN Conference on Environment and Development) plan

of action Agenda 21, Rio de Janeiro, 14 June 1992, in its para. 15.3 highlights that

biodiversity loss took place particularly on the ground of “introduction of foreign plants and

animals” (which is also shown terminological differences towards IAS). In the same

paragraph principles towards biodiversity protection (and considering mentioned above

provisions – towards IAS regulation) are enshrined. Among them are an attitude towards

biological resources as a capital asset, necessity for capacity to monitor, study and assess

biodiversity, a requirement of national effective measures and international cooperation, re-

establishing of state sovereignty over their resources combining with a responsibility to

conserve biodiversity and not to cause harm to biodiversity which is outside of state’s

jurisdiction.

Another soft law document – the Earth Charter, The Hague, 29 June 2000, highlights the

problem of IAS in context of the principle of ecological integrity. According to the Princip le

5 (d) of the Charter, special concern on biodiversity and natural processes sustaining life in

protecting and restoring the integrity of ecosystems is assumes, on the one hand, control and

eradication of non-native and genetically modifies species which are harmful to the

environment, and, on the other hand, prevention of ecosystems from introduction of such

species.

The Convention on Biological Diversity (CBD), Rio de Janeiro, 05 June 1992, in force 29

December 1993 (the Russian Federation is a party to the treaty since 4 July 1995, Canada is

a party to the treaty since 29 December 1993) obliges states to prevent, control and eradicate

alien species which are harmful for ecosystems, habitats and species as far as possible and

as appropriate (Art. 8 (h) concerning in-situ conservation).

10

On the Conference of the Parties (COP) to the CBD (10th meeting) the Aichi Biodivers ity

Targets has been established. According to that document, the achieving of Strategic goal B

(reduction of direct pressure on biodiversity and promotion its sustainability) is possible in

particular by aiming target 9 (by 2020) which consist of identification of IAS and their

pathways, control and eradication of the most significant ones, and prevention of

introduction and establishment of IAS.

In order to implement provisions of Art. 8 (h) of the CBD and achieve target 9 of the Aichi

Biodiversity Targets following COP decisions on IAS is especially significant as a tool: CBD

COP 6 Decision VI/23 “Alien Species that threaten ecosystems, habitats or species” and

CBD COP 12 Decision XII/16 “Invasive alien species: management of risks associated with

introduction of alien species as pets, aquarium and terrarium, and as live bait, and live food,

and related issues”.

The role of CBD COP 6 Decision VI/23 is crucial in giving states a non-binding Guiding

Principles in implementation of Art. 8 (h) of CBD (an attachment to the Decision) and also

significant in highlighting key features of a problem, relevant international instruments, and

bodies. Thus, the Decision mentions the Office International des Epizooties, the

International Maritimes Organization, and the World Trade Organization to name but as

main international entities for cooperation towards the issue. The Decision especially

highlights the role of International Plant Protection Convention, Rome, 06 December 1951,

in force 03 April 1952 (both the Russian Federation and Canada are contracting parties).

The Decision in its Annex enshrines four groups of guiding principles for prevention,

introduction, and mitigation of impacts of alien species that threaten ecosystems, habitats

and species:

1. general principles including precautionary approach, three stages approach –

eradication/containment/control, the ecosystem approach, the role of a state,

education and monitoring in combating with IAS problem;

2. principles of prevention: border control, quarantine measures, exchange of

information, cooperation and capacity building;

11

3. principles concerning introduction divided into two groups: concerning intentiona l

introduction such as prior authorization and concerning unintentional introduction

such as identification of pathways and sectoral analysis;

4. mitigation principles based on three stages approach mentioned in general princip les,

where eradication is a priority principle and two others are supplementary measures

if the first strategy is unavailable.

Concerning the topic of the thesis it should be mentioned that CBD COP 6 Decision VI/23

especially highlights the threat of IAS in geographically and evolutionary isolated

ecosystems (to which the Arctic region mutatis mutandis could be included in my opinion)

and mentions increasing global trade, tourism, climate change and transportation as main

risks concerning the issue (which is also significant for the developing Arctic).

The complexity of IAS problem involves different international instruments and

organizations in formulating regulatory framework. While outlining CBD COP 6 Decision

VI/23 the subsection has already mentioned some of them. According to S. Riley, more than

40 treaties to some extent include IAS regulation or preventive measures in their agendas32.

One of historically the first examples is the Convention designed to ensure the conservation

of various species of wild animals of Africa, which are useful to man or inoffensive, 190033.

Some related to the issue provisions can be found:

• in the law of the sea: Art.196 of the United Nations Convention on the Law of the

Sea (UNCLOS), Montego Bay, 10 December 1982, in force 16 November 1994, the

International Convention for the Control and Management of Ships’ Ballast Water

and Sediments (BWM), 13 February 2004, in force 8 September 2017, both Russia

and Canada are parties of the Conventions;

• In the Antarctic law: Art. IX of the Agreed Measures for the Conservation of

Antarctic Fauna and Flora, Brussels, 02 June 1964, in force 01 November 1982,

ratified by the Soviet Union 20 February 1965, Canada is not a party of the treaty,

the Protocol on Environmental Protection to the Antarctic Treaty, Madrid, 04

October 1991, in force 1998, especially provisions of Annex II to the Protocol –

32 Riley 2005, p. 323. 33 British Parliamentary Papers, 1900, Cd. 101., vol. 56, pages 825-837

12

Conservation of Antarctic fauna and flora, Russia is a party of the Protocol, Canada

is not participating; despite focusing of these documents on different geographica l

region than the master’s thesis concerns, they are the examples of eradication and

control approaches towards IAS in fragile ecosystems with cold climate;

• In the trade law: Agreement Establishing the World Trade Organization (WTO),

Marrakesh, 15 April, 1994, especially such provisions of its annexes as Art. XX (b,

g) of the General Agreement on Tariffs and Trade (GATT), Geneva, 30 October

1947, in force 01 January 1948, Agreement on the Application of Sanitary and

Phytosanitary Measures concerning for example quarantine measures establishing

by states for protection of their environment, both Russia and Canada are parties of

the WTO.

Besides provisions of conventions in which Russia and Canada are parties as hard law

instruments, soft law regulation should be mentioned. In this type of regulation, guidelines

and statements of the International Union for Conservation of Nature (IUCN) are significant.

The IUCN combines both governmental and non-governmental organizations, scientific and

business communities. It provides at least following documents concerning the topic: the

IUCN Position Statement on translocation of living organisms: introductions, re-

introductions and re-stocking, Gland, 04 September 1987, the IUCN Guidelines for the

prevention of biodiversity loss caused by alien invasive species, Gland, February 2000, and

the IUCN Guidelines for Re-Introductions, Gland, May 1985. The IUCN Guidelines for the

prevention of biodiversity loss caused by alien invasive species are embedding the princip les

and recommended actions concerning the intentional and unintentional introduction of IAS,

eradication and control, highlighting state regulation and policy expressing national

specificity as a crucial factor for successful biodiversity protection.

Thus, the problem of biodiversity protection from the impact of IAS attracts complex

attention of different legal regime, soft and hard law instruments. One can recognize Art. 8

(h) of the CBD which requires states to prevent, control and eradicate IAS as an umbrella

provision. Different instruments usually mention control, containment, and eradication as

main means to combat the problem concerning both intentionally and unintentiona lly

introduced IAS.

13

2.2.2 Regional and national approaches to regulation of biodiversity protection from

invasive alien species

Regulation (EU) # 1143/2014 of the European Parliament and of the Council of 22 October

2014 on the prevention and management of the introduction and spread of invasive alien

species (Regulation 1143/2014)34 – is the main EU legal instrument towards IAS problem,

which is directly applicable to its member states. In the preamble of the document, the EU

refers to its obligations under Art. 8 (h) CBD to protect biodiversity from IAS (para. 4). The

aim of the Regulation is to prevent, minimize and mitigate the adverse impacts on

biodiversity of introduction and spread of IAS (Art. 1).

The Regulation recognizes the existence of 12 000 alien species within the Union’s border,

10-15 % of which could be invasive (para. 1 of the preamble). The document reflects basics

international attitudes towards the problem including understanding of intentional and

unintentional ways of introduction of IAS (Art. 1, para. 21 of the preamble), recognition of

priority of prevention measures (para. 15 of the preamble), combination of eradication,

containment, and control (para. 24 of the preamble).

Regulation 1143/2014 establishes links with its provisions and necessity to follow other EU

obligations (in particular under the WTO regime – para. 11 of the preamble). The document

recognizes the importance of excluding overlapping and contradiction with other EU norms

(para. 8 of the preamble) and affirms the necessity of taking into consideration such factors

as implementation costs of member states, cost of inaction, cost-effectiveness, and socio-

economical aspects (para. 12 of the preamble).

According to the provisions of Regulation 1143/2014 IAS are not all alien species, but those

of them, which threaten the biodiversity and related ecosystem services (Art.3). From the

scope of the regulation excluded, among others, species which resettled naturally without

human impact (including those who change range because of the climate change and

changing in ecosystems, para. 7 of the preamble, Art. 2). IAS divided into two main groups:

IAS of the Union’s concern and IAS of member states’ concern (Art. 3). One of the main

ideas of the Regulation is the creation of the list of IAS of the Union concern (the Union list,

para. 10 of the preamble). It imposes specific obligations on all member states based on the

34 OJ 04.11.2014. L 317/35.

14

precautionary principle (para. 20 of the preamble) and the necessity to prevent the situations

when inactions of some member states would undermine actions of the others (para.18 of

the preamble).

Commission Implementing Regulation (EU) 2016/1141 of 13 July 2016 adopting a list of

invasive alien species of Union concern pursuant to Regulation (EU) No 1143/2014 of the

European Parliament and of the Council (Commission Implementing Regulat ion

2016/1141)35 adopted the Union list, which includes more than 30 IAS. Commiss ion

Implementing Regulation (EU) 2017/1263 of 12 July 2017 updating the list of invasive alien

species of Union concern established by Implementing Regulation (EU) 2016/1141 pursuant

to Regulation (EU) No 1143/2014 of the European Parliament and of the Council

(Commission Implementing Regulation 2017/1263)36 amends the original list. This

document recognizes 12 more species as IAS of the Union concern.

The EU regime on IAS recognizes the importance of monitoring, existing of centralized

information systems, transparency, accountability, surveillance, a scientific forum, risk

assessment, public awareness, inclusiveness of regional and local communities in common

actions towards the problem (para. 13, 28-30 of the preamble of Regulation 1143/2014).

According to Art. 24 (1) of the Regulation 1143/2014 by 1 June 2019 all member states

should submit their reports and then this obligation should be carried out once in every six

years37.

List approach towards the IAS problem also exists in the legislation of different countries.

Sometimes the problem is addressed by sectoral legislation (for example, agricultural law)

on federal and (or) states’ level, as in case of the United States38. Thus, according to § 1791

Louisiana Revised Statute (Acts 1995, No. 497, §1), in Louisiana, the Chinese tallow

(sapium sebiferum) is recognized as a noxious plant harmful to growth and development of

beneficial plants and pasture and may be destroyed wherever found in this state39.

35 OJ 14.07.2016. L 189/4. 36 OJ 13.07.2017. L.182/37. 37 On member states’ approaches towards IAS problem see, for example: Köck, 2015, p. 156-172. 38 Lewis– Porter. 2014, p. 171-201. 39 https://legis.la.gov/Legis/Law.aspx?d=85861 (07 February 2018).

https://legis.la.gov/Legis/Law.aspx?d=85861

15

According to the Executive Order 13112 of 3 February1999 “Invasive Species” (Executive

Order 13112)40 and the Executive Order 13751 of 5 December 2016 “Safeguarding the

Nation from the Impacts of Invasive Species” (Executive Order 13751)41, on the federal level

in the US special authorities – National Invasive Species Council (Council) and the Invasive

Species Advisory Committee – are established. Sec. 4 of Executive Order 13112 (as

amended by Executive Order 13751) establishes the obligation of the Council (which

combines Secretary of State, Secretary of Defense, and other authorities) to undertake

National Invasive Species Assessment. Both Executive Orders highlight the meaning of

National Invasive Species Management Plan, which includes among other things goals and

objectives of policy concerning IAS. The Council encourages planning and actions on

different levels, among all stakeholders (Sec. 4 (b) Executive Order 13112), and

collaboration of different actors is recognized as critical (Sec. 1 Executive Order 13751).

Executive Order 13751 also declares that IAS every year cost the US billions of dollars and

climate change influences the establishment, spread, and impacts of IAS.

Legal frameworks on IAS can include list approach (as in the EU or at states’ level of the

USA), management plans (federal and states’ levels of the USA), a combination of different

means with the inclusion of diverse net of stakeholders in decision-making and

implementation. Climate change is also mentioned in legal documents both as one of the

drivers behind intensification of the problem and as a factor, which facilitates movement of

species which is not included in regulated IAS issues if it does not have features of direct

human impact. Next subsection discusses the nexus between climate change adaptation and

norms on biodiversity protection from IAS in more details.

2.2.3 Climate change adaptation and its nexus with the regulation of biodiversity protection

from invasive alien species

United Nations Framework Convention on Climate Change, Rio de Janeiro, 4 June 1992, in

force 21 March 1994 (UNFCCC, entered into force for Canada 21 March 1994, for the

Russian Federation – 28 March 199542) established its objective as stabilization of GHG

concentration at level preventing dangerous anthropogenic interference with the climate

40 FR. 61 (25). 08.02.1999. Presidential Documents. 6183-6186. 41 FR. 81 (236). 08.12.2016. Presidential Documents. 88609-88614. 42 United Nations: Status of Ratification of the Convention.

16

system (Art. 2). This level should be achieved within a period, which allows ecosystems to

adapt naturally to climate change (Art. 2).

The UNFCCC also establishes obligations for its member states to include adaptation to

climate change into their policy, among other things to minimize the adverse effect of

climate change on the environment (Art. 3 (3), Art. 4 (1) (b, f).

Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto,

10 December 1997, in force 16 February 2005, 37 International Legal Materials (1998) 22

(Kyoto Protocol, Canada withdrew from the Protocol, date of notification 15 December

2011, date of effect 15 December 2012; in force with respect to the Russian Federation – 16

February 200543), while mainly focuses on mitigation issues also reaffirms the necessity of

adaptation (Art. 10 (b), 12 (8).

Despite mentioned legal provisions, the real shift towards importance of adaptation to

climate change relates to Paris Agreement, Paris, 12 December 2015, in force 4 November

2016 (Paris Agreement, in force with respect to Canada – 4 November 2015, the Russian

Federation signed the Agreement 22 April 2016 but did not ratify44). Establishing adaptation

as a global goal (including enhancing adaptive capacity, strengthening resilience and

reducing vulnerability to climate change, Art. 7(1), the Paris Agreement also highlights the

necessity of ensuring the integrity of all ecosystems and protection of biodiversity (the

preamble), combines adaptation, the ecosystem approach and environmental protection in

its further provisions (Art. 7 (5), (9, e).

As it was mentioned above, the main share of legal, political and academic attention under

the UNFCCC regime before the Paris Agreement was focused on climate change mitigat ion.

Even though adaptation now became of equal importance in relation with mitigation, it is

also can be distinguished into two parts: an adaptation of human systems and adaptation of

non-human natural systems, where the latter remains quite marginalized in comparison with

the former45.

43 United Nations: Status of Ratification of the Kyoto Protocol. 44 United Nations: Paris Agreement – Status of Ratification. 45 Trouwborst 2009, p. 419-442.

17

Notwithstanding, considering necessity of establishing interlinkages between clima te

change, biodiversity, and human rights regimes, and following approaches and princip les

which are recognised under the CBD (ecosystem approach, precautionary princip le

(approach), cost-effectiveness and benefit-sharing), E. Morgera poses the question: whether

the compliance mechanism under climate regime could provide the appropriate platform for

such a nexus?46 This question was posed before the adoption of the Paris Agreement but is

still relevant for the future development of the provisions of the Agreement mentioned above

considering the biodiversity regime.

COP to the CBD, which periodically arises issues on interconnection between biodivers ity

and climate change, 10 December 2016 adopted Decision XIII/4 “Biodiversity and climate

change”. COP in the Decision welcomes the Paris Agreement and its provisions on

biodiversity (para. 1), encourages different entities to integrate ecosystem approach into their

mitigation and adaptation policies (para. 4) and highlights the potential for synergies

between climate change adaptation and mitigation measures in protecting biodiversity and

reducing disaster risks in ecosystems (para.7).

In this context, the subsection will evaluate biodiversity adaptation to climate change in

relation to the problem of IAS. First, it should be mentioned that some aspects of IAS

problem concerning climate change were already noted previously. Thus, some mitiga t ion

actions as a shift towards biofuel mismatch with biodiversity protection policies and could

lead to the establishment of new IAS.

The scientific literature concerning climate change adaptation and IAS points out the

following. J.J. Hellmann et al. evaluate the relationship between IAS and changing climate

through the stages of invasion, or “invasion pathways”. First, the species, which have

potential to become invasive, live at the area of their traditional livelihood, then they are

transported to the new places (transportation stage), survive in new range (coloniza t ion

stage), growth in their population (establishment stage) and then spread the landscape

(landscape spread stage). Climate change alters transportation means and mechanisms, leads

to the establishment of new IAS, alters the impact of existing IAS, distribution of IAS and,

46 Morgera 2013, p. 390.

18

therefore, calls for altering of control strategies, enhancing monitoring and coordination

between stakeholders47.

CBD COP 10 Decision X/33 “Biodiversity and climate change” (29 October 2010) invites

parties and other entities to reduce non-climatic stresses including IAS in order to reduce the

negative impact of climate change for biodiversity (para. 8 (d, i). In this context, the fight

against IAS and development of controlling mechanisms as such became a part of adaptation

strategies, because reducing of this non-climatic stress on biodiversity is enhancing the

resilience of ecosystems and adaptive capacities of the species (para. 8 (d) of the Decision).

The issue of biodiversity adaptation to climate change in a context of IAS is not exhausted

by just a necessity to enhance protection of ecosystems from IAS introduced by humans.

The problem is much broader.

Climate change forces species to change their habitats and move to the north, at higher

latitudes and altitudes48. Such species also could become invasive in new territories and only

effective mitigation could stop this movement. While climate still changes, species which

move naturally without human introduction are usually accepted by legislation as native, not

alien species (as in the EU Regulation 1143/2014 mentioned in part 1.4 of the master’s

thesis).

The movement of species to new areas, affected by climate change is quite fast, but

sometimes not as fast as the changing climate, that is why A. Trouwborst believes that for

effective adaptation of ecosystems and species (especially those of them which are at the

edge of extinction) proactive policies are needed, otherwise, biodiversity protection will be

“deathbed conservation”49. This approach correlates with some of CBD COP decisions.

Thus, according to para 8 (d, iii) CBD COP 10 Decision X/33, development of connectivity

such as ecological corridors and ecological networks is needed.

One of the most debatable issues of proactive biodiversity adaptation means is such called

assisted migration, when humans can even translocate species for them to survive. Assisted

47 Hellmann et al. 2008, p. 534-543. 48 Trouwborst 2009, p. 419. 49 Trouwborst 2009; Trouwborst 2013.

19

migration arises critique by skeptics who put economic, ecological, ethical (on human

manipulation over nature) and legal arguments. Judicial practice in some countries (for

example in Finland) has already affirmed illegality of such actions50. The possibility of

human introduction of new species as adaptation measure needs further evaluation especially

in its correlation with IAS legislation because of possible invasiveness of such species in

their new habitat.

Due to the limited scope of the master’s thesis, it will be further focusing on legal framework

on IAS considering reducing of this stress on biodiversity as a mean for biodivers ity

adaptation to the changing climate, excluding other issues (such as assisted migration and

the issues related to it) from the scope of the paper.

Wrapping up the part on the nexus of climate change adaptation and biodiversity protection

concerning IAS it should be mentioned that new challenges and risks of invasiveness and

necessity to enhance protection of ecosystems from IAS as adaptation measure require better

implementation and further development of norms of biodiversity protection from IAS. A.

Trouwborst proposes following directions: 1) the effective implementation of existing law;

2) interpretation of existing norms in light of climate change regulation (especially bearing

in mind, that many of biodiversity protection legal instruments had been created before

climate change law and its parts on adaptation to changing climate); 3) modification of

norms; 4) creation of new regulation51. In the next part of the thesis, the connection of

previous general provisions of the paper with Arctic dimension of the problem will be

conducted.

2.2.4 Regulation of invasive alien species in the Arctic

M. Byers and J. Baker claim that the Arctic region is both fragile for climate change and

effects the climate that is why current international environmental cooperation begins and

ends in the Arctic52. C. Humrich believes that Arctic environmental problems are rooted in

other regions53. An attitude towards the Arctic as embedded and embedding region

combining with the previous statement calls for enhancing international cooperation54.

50 Borgström 2015, p. 69-82. 51 Trouwborst 2013, p. 324. 52 Byers – Baker 2013, p. 215. 53 Humrich 2017, p. 81-99. 54 Ibid, p. 81-99.

20

As the discussion on the status of Barents Sea snow crab have shown the provisions of

UNCLOS and CBD remains main legal frameworks for the Arctic-related IAS problems.

Nevertheless, other applicable Arctic-specific legal instruments (at least for further

development and interpretation) should be mentioned.

Arctic Environmental Protection Strategy (AEPS), Rovaniemi, 14 June 1991 as a result of

Finish government initiative and cooperation of 8 Arctic countries (Denmark, Sweden,

Norway, Finland, Iceland, USSR, USA and Canada) combined self-commitments of states

to assess potential environmental impact of the development and to conduct cooperative

actions.

In 1996, the Arctic Council was established (Declaration on the Establishment of the Arctic

Council, Ottawa, 19 September 1996, both Russia and Canada are participants). According

to para. 1 (a) of the Declaration the Arctic Council is a high-level forum for common

activities of participating states in the Arctic issues including sustainable development and

protection of the environment. According to para. 1 (b) the Council coordinates established

under AEPS entities including the Arctic Monitoring and Assessment Program (AMAP);

Conservation of Arctic Flora and Fauna (CAFF); Protection of the Arctic Marine

Environment (PAME); and Emergency Prevention, Preparedness, and Response (EPPR). In

2017, CAFF and PAME established Arctic Invasive Alien Species Strategy and Action Plan,

which is while remaining not binding document sets priorities for the Arctic Council and its

partners55.

While the Arctic Council remains overarching institute in the Arctic governance includ ing

environmental governance, some more specific forums also have been created. Thus,

according to Declaration on Cooperation in the Barents Euro-Arctic Region, Kirkenes, 11

January 1993 Barents Euro-Arctic Council (BEAC) was established (Russia is participat ing,

Canada is not). In Declaration on the 20th Anniversary of the Barents Euro-Arctic

Cooperation, Kirkenes, 3-4 June 2013, adaptation to the impact of climate change mentioned

as the main challenge requiring cooperation at national, regional, and local levels.

55 Conservation of Arctic Flora and Fauna and Protection of the Arctic Marine Environment: Arctic Invasive

Alien Species Strategy and Action Plan, 2017.

21

Bilateral and multilateral cooperation in the Arctic concerning the issues-specific protection

of the environment also takes place and it refers to historically first nature conservation

documents. One of the earliest examples is a cooperation on Northern fur seals protection

(Convention respecting Measures for the Preservation and Protection of the Fur Seals in the

North Pacific Ocean, Washington, 7 July 1911, in force 15 December 191156 (both Canada,

represented by the United Kingdom, and Russia are parties of the Convention)57.

Other examples of such segmented cooperation are: Agreement on the Conservation of Polar

Bears, Oslo, 15 November 1973 (in force, both Russia and Canada are participating),

Inuvialuit – Inupiat Polar Bear Management Agreement in the Southern Beaufort Sea, 4

March 2000 (as an example of cooperation of indigenous people on nature conservation),

Convention on Future Multilateral Cooperation in Northeast Atlantic Fisheries, London, 18

November 1980, in force 17 March 1982 (NEAFC Convention, Russia is contracting party,

Canada is cooperating non-contracting party58).

Considering IAS problem, the issues of shipping are in focus especially concerning

Northwest Passage and Northern Sea Route. The main legal instrument of cooperation of the

Arctic states in this realm is the BWM Convention mentioned in part 1.4 of the master’s

thesis.

Other environmental issues, which are in focus of the legal instruments on the Arctic

cooperation, are a radioactive waste and nuclear accidents issues, deep-sea mining, air-borne

pollution including persistent organic pollutants, Arctic haze, black carbon, oil spills and

others59.

To wrap the part on Arctic dimension of biodiversity adaptation to climate change

concerning IAS problem up it could be concluded that despite IAS is not critical nowadays

its significance grows and requires enhancing cooperation considering precautionary

principle, the ecosystem approach and the idea of prevention of IAS. In this context, existing

56 Australian Treaty Series. 1913. # 6. 57 Byers – Baker 2013, p. 171. 58 North-East Atlantic Fisheries Commission. 59 Byers – Baker 2013, p. 171-215.

22

and emerging legal instruments of the Arctic cooperation both general (as Arctic Council)

and sector-specific importance (as species-specific protection treaties) are crucial.

2.3 Conclusion

Based on provisions of the Chapter following is concluding:

1. IAS are non-native species which cause or to a high degree of certainty can cause

damage to their new environment and biodiversity, are intentionally or

unintentionally introduced by people.

2. Control, containing and eradication are the main measures towards the IAS problem.

3. Obligations of states to protect biodiversity from such species explicitly or by

implication expressed in different international hard and soft law legal instruments,

where Art. 8 (h) of CBD could be seen as an umbrella frame.

4. Ecosystem and precautionary approaches, idea of prevention, transparency, and

cooperation – are the key pillars of biodiversity protection from IAS.

5. Under climate change obligations protection biodiversity from IAS is a specific non-

climatic mean of adaptation expressing in enhancing the resilience of ecosystem and

improving adaptive capacities of species.

6. General and specific legal instruments to protect the environment in the Arctic could

be used for further actors’ cooperation in their attempts to minimize the adverse

effect of climate change in the region, including issues of introduction and altering

IAS in the region.

Bearing in mind these as a pre-requisite, next chapters evaluate Russian and Canadian legal

frameworks.

23

CHAPTER 3. A LEGAL FRAMEWORK ON INVASIVE ALIEN

SPECIES IN CANADA

3.1 General outline

The necessity first to determine Canadian legislation devoted to the issues of IAS and then

to assess its Arctic dimension predefines the structure of this chapter. On the reason of

coexistence of different definitions of the Arctic, the division of the Arctic and non-Arctic

territories could not be strict (especially bearing in mind ecosystem approach).

Thus, Johansson et al. in their research concerning IAS in the ballast water of the vessel M/V

Arctic that goes from Quebec City to Deception Bay (all ports are within Canada) describes

their research as conducting on the Canadian Arctic60. It shows that Arctic research agenda

could embed for example New Foundland and Labrador, Quebec and even Ontario. It is

significant to consider that, as the previous chapter mentioned, the Arctic problems roots in

the regions outside the Arctic, which once again highlights interdependency of the territories,

and difficulties in distinguishing exact Arctic issues.

In the master’s thesis, such a geographical but narrower approach to the Canadian Arctic

will be in use. According to one of the definitions, the Arctic is the territory located north of

the Arctic Circle61. In Canada lands which are located north of the Arctic Circle included in

Yukon, Northwest Territories and Nunavut, also Canadian Arctic embedded north marine

territories and the continental shelf (map of Canadian provinces and territories is provided

in Figure 1). Thus, the Canadian approach is tied to geography in contrast to the Russian

one, which is administrative as the next chapter, will show.

Section 3.1 will give an overall outlook on the issue. Section 3.2 of the master’s thesis is

devoting to general legislation on IAS. Section 3.3 describes Arctic-specific legisla t ion

applicable to the topic. The chapter will be wrapped up by the general conclusion in section

3.4.

60 Johansson et al. 2017, p. 567-576 61 Dictionary.com: Arctic

24

Figure 1. Canadian Provinces and Territories62

While the issues of IAS are in focus of Canadian scientific literature, A.L. Smith et al. claim

that it is more the realm of natural science, while social science perspective on IAS,

especially its connection with climate change issues remains in its infancy.63

Notwithstanding, despite this comment, the risk of invasiveness of new species in Canada is

recognized. The main areas of possible development of the IAS problem in Canada include

the appearance of new niches from species which could not adapt to the changing climate,

removal tundra by boreal forest, expanding species from southern regions (especially – the

US), and opening the Northwest Passage (as sea corridor from Asia to Europe through

Canadian Arctic Archipelago and northern coasts of North America)64.

Further, the subsection describes the specificity of Canadian federalism which is relevant for

understanding the legal context of environmental legislation (and – in more narrow sense –

the legal framework on IAS).

62 Guide of the World: Canada Map with Provinces . 63 Smith et al. Environmental Reviews 2012, p. 1-16 64 Ibid, p. 1-16.

25

According to the Declaration of Union (section 3 of British North America (BNA) Act,

186765) Canada was formed as a One Dominion of the Provinces of Canada, Nova Scotia,

and New Brunswick. According to section 6 of the BNA Act, the Province of Upper Canada

formed the Province of Ontario and the Province of Lower Canada formed the Province of

Quebec. Provisions of section 5 of the BNA Act with further amending acts established

Canada as a federation of ten provinces (Ontario, Quebec, Nova Scotia, New Brunswick,

Manitoba, British Columbia, Prince Edward Island, Alberta, Saskatchewan, New Foundland

and Labrador) and three territories (Yukon, the Northwest Territories, Nunavut). The

northern Arctic lands of Canada are in the status of territories distinguishing from provinces

by lack of inherent sovereignty.

According to subsections 91 (10-13, 24) of the BNA Act, Canadian Parliament is empowered

over such issues as navigation and shipping, quarantine and marine hospitals, seacoast and

inland fisheries, ferries and Indians and lands reserved for them. Canadian provinces have

exclusive legislative rights over management and sale of public lands of provinces, timber

and wood, and all matters which are local and private in nature (subsections 92 (5, 16) of the

BNA Act). According to section 109 of the BNA Act, lands, mines, minerals, and royalties

remain in the provincial property.

As A. S. Huque and N. Watton claim, such a pattern of division of powers between federal

center and regions led to some obstacles in environmental issues66. Among them, the lack of

federal power in establishing and implementing of united environmental policy.

Nevertheless, considering common law features of Canadian legal system the position of the

Supreme Court is critical according to which federal authorities could establish some

measures if province unable to do so, as they did in a case of pollution control67.

The other obstacles are the necessity for federal authorities to negotiate with provinces,

which is lengthy and costly, and the protection of industries by provinces’ policies68. The

65 Department of Justice, Canada: A Consolidation of the Constitution Acts 1867-1982. 01 January 2013

[http://laws-lois.justice.gc.ca/PDF/CONST_E.pdf] (12.02.2018). 66 Huque – Watton Public Organization Review, p. 71-88. 67 Ibid, p. 71-88. 68 Ibid, p. 71-88.

26

latter means that strict provincial norms could lead to a relocation of industries to the

jurisdiction of other provinces69

Notwithstanding, now the ‘new public management’ ideas are also enhancing such as a

collaboration with private sector and other stakeholders in environmental issues which drives

environmental policy forward despite the obstacles mentioned above70.

3.2 Canadian legislation on invasive alien species

3.2.1 Federal legislation

The federal level in Canada includes both strategies, plans and programs on IAS, on the one

hand, and quite detailed sectoral legislation on IAS, on the other hand. There is also a call

for common legal framework combining different existing pieces of legislation on IAS in

Canada. The obstacles are in the specificity of Canadian federalism and quite strong powers

of provinces in areas concerning the environment, which alleviates somehow by new trends

in governance, such as including private sectors and other stakeholders among provinces and

federal authorities.

While just 16 IAS cost Canada $13.3-4.5 billion every year71, there is no holistic and

focusing on IAS legal framework at the federal level. In addition, even if it would be, as

A.L.Smith, D.R. Bazely, and N. Yan claim without political will towards the problem law

would remain elusive72.

Despite the fragmentation, IAS directly or indirectly concerned in federal law, strategies ,

and plans. Further, the subsection will mention some relevant pieces of legislation and

political statements considering characteristics, which A.L.Smith, D.R. Bazely, and N. Yan

noticed. According to them, first, the terminology of the acts is different: “invasive alien

species”, “pests”, “hazards”, and “weeds”73. Secondly, that acts usually not follow attitude

to IAS as a combination of both impact (“invasive”) and origin (“alien”) criteria74. Thirdly,

all these acts were established at different times, by different rulers and for different

69 Ibid, p. 71-88. 70 Ibid, p. 71-88. 71 Smith – Bazely– Yan Biological Invasions. 2014, p. 1325. 72 Ibid, p. 1325-1344. 73 Ibid, p. 1341. 74 Ibid, p. 1341.

27

purposes, mainly before IAS as a problem were put in policy agenda75. Finally, some pieces

of regulation and policies could be in contradiction with each other: species could be

attractive for trade purposes, but could simultaneously have features of IAS, as in case of

common carp76.

As the chapter 1 of the master’s thesis mentioned, Canada is a party of the CBD and therefore

obliged by provisions of its Art. 8 (h) on the protection of biodiversity from IAS. According

to Art. 6 of the CBD, each party shall develop national strategies, plans, and programs. As a

response to its CBD obligations, Canadian Biodiversity Strategy 1995 was launched77. The

Strategy uses the term “harmful alien organisms” and provides such examples of them as

sea lamprey and zebra mussels in Great Lakes ecosystems. While listing general means to

protect ecosystems from such organisms, the Strategy also highlights that release of alien

organisms will not support conservation of biodiversity.

Next program document as a collective effort of federal government and other stakeholders

is An Invasive Alien Species Strategy for Canada78. According to the document, hierarchica l

approach to IAS was established with following priorities: 1) prevention; 2) early detection;

3) rapid response to new IAS; 4) management including control, eradication, and

containment).

There are also some sectoral documents, for example as A Canadian Action Plan to Address

the Threat of Aquatic Invasive Species79.

The documents mentioned above while overarching the IAS problem remain documents of

soft law character. Further, the subsection assesses the Canadian federal legislation in the

narrow meaning of this word. Despite an absence of a common multisectoral framework, the

IAS problem is in focus of sectoral legally binding documents. Further, four documents of

such type will be mentioned with a more detailed observation of regulation concerning

aquatic IAS.

75 Ibid, p. 1341. 76 Smith – Bazely– Yan Biological Invasions. 2014, p. 1325-1344. 77 Canadian Biodiversity Strategy: Canada’s Response to the Convention on Biological Diversity, 1995. 78 An Invasive Alien Species Strategy for Canada, September 2004. 79 Canadian Council of Fisheries and Aquaculture Ministers: A Canadian Action Plan to Address the Threat

of Aquatic Invasive Species, September 2004.

28

In Canada following legislative acts provide regulation on IAS: the Plant Protection Act,

current to 30 January 2018, last amended on 27 February 201580 (provisions on pests), the

Canada Shipping Act, 2001, current to 30 January 2018, last amended on 12 December

201781 (provisions on prevention and reduction the release by vessels harmful organisms or

pathogens), the Health of Animal Act, current to 30 January 2018, last amended on 27

February 201582 (importation animals into Canada), the Fisheries Act, current to 30 January

2018, last amended on 5 April 201683. The later act mentions invasive species directly.

According to paragraphs 43 (1) (n, o) and subsections 43 (2, 3) of the Fisheries Act, the

Governor in Council empowered to establish a list of aquatic invasive species and

regulations in order to control such species. The Governor in Council also can establish in

regulations ministerial authorization on including and excluding species in/out of the list.

Such regulations were enshrined in 2015 (Aquatic Invasive Species Regulations (AISR), 28

May 2015, current to 30 January 2018,84).

According to general provisions of the AISR, before launching the regulations Minister

should calculate the costs of implementation (section 3) and in a case of contradiction of the

AISR and other regulations under the Fisheries Act, the AISR is prevail.

As it is seen from the name of AISR these regulations embed both indigenous and non-native

species. As an annex to the AISR, there is a schedule from three parts, where the part 2 is a

list of species subjects to prohibitions and controls and part 3 is a list of species subject to

controls only in areas where they are not native. Sections 6-9 of the AISR establish four

types of prohibitions such as a prohibition of importation, possession, transportation, and

release. This is reflected in part 2 of the schedule, where opposite to name (common and

scientific) the prohibitions are mentioned, conditions and territories of prohibitions are

described. Thus, item 1 of part 2 of the schedule is a grass carp (Ctenopharyngodon della),

these species are prohibited to import, possess, transport, and release in dead and eviscerated

conditions throughout all Canadian territories. The total amount of items in part 2 of the

80 S.C. 1990, c. 20. [http://laws-lois.justice.gc.ca/PDF/P-14.8.pdf] (12.02.2018). 81 S.C. 2001, c. 26. [http://laws-lois.justice.gc.ca/PDF/C-10.15.pdf] (12.02.2018). 82 S.C. 1990, c. 21. [http://laws-lois.justice.gc.ca/PDF/H-3.3.pdf] (12.02.2018). 83 R.S.C., 1995, c.F-14 [http://laws-lois.justice.gc.ca/PDF/F-14.pdf] (12.02.2018). 84 SOR/2015-121 [http://laws-lois.justice.gc.ca/PDF/SOR-2015-121.pdf] (12.02.2018).

29

schedule is 89 species. Section 10 of the AISR established following rule towards non-native

species: generally, their introduction is prohibited; federal and provincial authorities can

establish otherwise. This prohibition is reflected in part 3 of the schedule, which includes 14

species of such a prohibition. The AISR also consist some exemptions. Thus, according to

paragraphs 13 (a) (i, iii) educational institutions, zoos, and aquariums are excluded from

prohibitions of sections 6-9. Situations of emergency excluded from all prohibit ions

(sections 6-10, section 12).

3.2.2 Legislation of provinces

Concerning provinces’ level of regulation, this subsection first mentions Ontario as the most

populous province in Canada and a province with the most innovative legislative attitude

towards the IAS problem. Ontario enshrined its Invasive Species Act in 201585, also

establishing Ontario Regulation 354/16: General, in force on 3 November 201686 under that

Act.

Before launching a single legal act towards the IAS, Ontario legal framework concerning

the issue was represented by sectoral acts, which are still relevant to the topic. They are

following: Fish and Wildlife Conservation Act, 199787 (breach of introduction into Ontario

species on which licenses are needed without such licenses – section 53), Forestry Act88

(forest tree pests’ regulation), Pesticides Act89, Provincial Parks and Conservation Reserves

Act, 200690.

The Ontario model of IAS specific regulation is based on Invasive Species Act, which

establishes a legal framework, principles, and rules of regulation and imposes penalties, and

Ontario Regulation, which enshrines lists of species and adds some provisions on

prohibitions and restrictions.

85 S.O. 2015, c. 22. [https://www.ontario.ca/laws/statute/15i22/v1?search=invasive+species] (12.02.2018). 86 S.O. 2015, c. 22. [https://www.ontario.ca/laws/regulation/160354/v1?search=invasive+species]

(12.02.2018). 87 S.O. 1997, c. 41. [https://www.ontario.ca/laws/statute/97f41]. 88 R.S.O. 1990, c. F.26 [https://www.ontario.ca/laws/statute/90f26] (12.02.2018). 89 R.S.O. 1990, c. P.11 [https://www.ontario.ca/laws/statute/90p11] (12.02.2018). 90 S.O. 2006, c. 12 [https://www.ontario.ca/laws/statute/06p12] (12.02.2018).

30

According to the Ontario rules, invasive species are those who are not native in Ontario and

harmful for the environmental (if they already exist there) or likely to be harmful (no matter

if they already exist in Ontario or not) (preamble of the Act).

All species are divided into two main groups: prohibited and restricted species, for the latter

a list of prohibitions is shorter (sections 7, 8 of the Act). The Regulation contains four tables,

where all of the species included in tables are IAS but first three tables consist of prohibited

species and the latter fourth table is devoted to restricted species. First table consists of three

invertebrates (for example Common Yabby), second table consists of five plants (for

example Brazilian Elodea), the third table is a list of eight fishes (among which is, for

example, Bighead Carp), and the fourth table of restricted species embeds four plants (for

example Black Dog-Strangling Vine).

According to the Act, Minister of Natural Resources and Forestry imposes prevention and

approves response plans (section 13 and further), the Act also establishes inspections

(section 15 and further). The Regulation makes some clarifications. Thus, according to

section 6 of the Regulation, a person who catches a member of IAS while fishing discharges

from responsibility if he or she has a license for fishing, catch the member of IAS

incidentally, and immediately destroy this member of IAS in a way, which prevent further

propagating, and reproducing of IAS.

The penalties establishing for breaching the prohibitions and restrictions are strict. Thus, if

a breach is the first offence the maximum fine for companies is $ 1 000 000, for a person -

$ 250 000. For second and subsequent offences the maximum fine for companies - $

2 000 000, for persons - $ 500 000. Persons could also be imprisoned maximum for one year

(this rule applicable for both first and subsequent offences, the imprisonment could be

instead of a fine or complementing it, paragraphs 44 (1) (a, b) of the Act). In case of breach

of prohibitions or restrictions concerning two or more members of IAS, penalties mult ip ly

but following the rules on maximum levels of penalties (subsection 44 (2) of the Act). A

judge can also impose other penalties and restrictions such as an order against a perpetrator

to engage in any activities, which led to an offence (subsection 45 (1).

31

Thus, Ontario norms on IAS are not only holistic in their nature and innovative as an

approach of provincial regulation toward the issue but also have quite strict penalties for

breaching them.

Another example, which arises from provincial activities in Canada towards IAS issue, is

the participation of Canadian province Quebec in common institutions with the US states

(Vermont and New York) to protect the environment of Lake Champlain basin from IAS91.

Lake Champlain is in connection with other water basins in the region including the Great

Lakes and it is known that there are 48 aquatic invasive species in Lake Champlain and 183

– in the Great Lakes92. Established through cooperation between sub-national entities

mentioned above Rapid Response Workgroup of Aquatic Nuisance Species Subcommittee

of Lake Champlain Basin Program enshrined Lake Champlain Basin Rapid Response Action

Plan for Aquatic Invasive Species (further – RRAP) in May 200993.

According to RRAP, in every sub-national entity leading agencies are identified (usually,

regional ministers of the environment) which will be co-work with other relevant

stakeholders in order to follow the RRAP. Rapid Response Task Force also was established

by combining technical experts and resource managers from all sub-national entities

involved to facilitate and promote cooperation between actors for implementing RRAP.

According to the document, five steps approach towards IAS was introduced: 1)

confirmation of aquatic invasive species; 2) delineation, isolation, and preliminary

evaluation; 3) treatment selection; 4) treatment plan implementation; 5) monitoring and

evaluation. According to the introduction of RRAP, this document should be a blueprint for

officials in every participating entity. M.D. Modley believes that this inter-jurisdictiona l

approach towards IAS could be extrapolated to other shared basins in the world94.

Thus, provincial legislation like a federal one can have quite diverse norms concerning IAS.

In case of Ontario, overarching act on IAS with implementing regulation and strict sanctions

took place. Quebec demonstrates an example of inter-jurisdictional cooperation on the issue

with sub-national entities from the other country. Such an approach could be useful for both

91 Modley Water SA. 2008, p. 476-480. 92 Ibid. 93 Rapid Response Work Group of Aquatic Nuisance Species Subcommittee, Lake Champlain Basin Program:

Lake Champlain Basin Rapid Response Action Plan for Aquatic Invasive Species. May , 2009. 94 Modley Water SA. 2008, p. 479.

32

sub-national actors and states because the issue of IAS is transnational and ecosystem

approach towards it requires bilateral and multilateral cooperation.

Despite the significance of legal frameworks in provinces and their role towards the issue

including cooperation with other jurisdictions, the call for a common federal legal

framework on IAS is viable.

Climate change adaptation framework also could be used as an umbrella approach towards

IAS in Canada as an adaptation measures enhancing resilience of biodiversity to changing

climate95. Thus, according to Final report of Canadian Working group on adaptation and

climate resilience, evaluation of legislation and other regulatory instruments could be a first

step in enhancing ecosystem resilience, while the integration of climate change consideration

into all environmental management, including biodiversity conservation and work to address

IAS is needed (option 13)96.

The role of federal authorities in developing cross-country nexus of climate change

adaptation and biodiversity protection is critical. According to Federal Adaptation Policy

Framework, the mission of federal level – is setting priority, especially by using its

legislative power in integration adaptation in federal policy and in issues of its sole

responsibility (Fist Nations and Inuit, oceans, international and inter-provincial issues)97.

3.3 Arctic-specific Canadian legislation relevant to the protection of Arctic ecosystems


Despite an absence of such a piece of legislation as Ontario Invasive Species Act concerning

the protection of the Arctic ecosystems from IAS in Canada, in this part of the master’s

thesis, Arctic-specific official documents and legislation will be assessed for identifica t ion

of their ability to be a future driver for legal development in the realm. First, the subsection

will address historical aspects of Canadian legal attitude towards Arctic issues, and then it

will concern some modern documents on regulation in Canadian Arctic, which in our

opinion could be a platform for future development of IAS regulation in the region. Finally,

95 The other possible ways of constructing the common framework are biodiversity legislation as a vehicle as

in case of Norway, South Africa, and Australia or the concept of threat to biosecurity as in New Zealand. See:

Smith – Bazely– Yan Biological Invasions. 2014, p. 1325-1344. 96 Working group on adaptation and climate resilience: Final report. 97 Federal Adaptation Policy Framework .

33

this part of the master’s thesis will observe Yukon, Northwest Territories and, Nunavut

relevant regulation, in particular, concerning the environment and socio-economic

assessment.

Canada shows its environmental concern towards the Arctic in 1960-70s in their tension with

the US which intended to use the Arctic water corridors to transport oil98.

An Act to prevent pollution of areas of the Arctic waters adjacent to the mainland and islands

of the Canadian Arctic, current to 30 January 2018, last amended on 1 April 2014 (Arctic

Waters Pollution Prevention Act, AWPPA)99 highlights in its preamble Canadian offic ia l

priorities in Arctic issues and defines what arctic waters mean according to Canadian

legislation. Thus, the AWPPA preamble establishes that for Canada, it is both important to

exploit its natural resources and to ensure that development, exploitation, and navigation in

the Arctic would be conducted in recognition of Canadian responsibility for welfare of First

Nations and other habitants and maintenance of peculiar ecological balance in water, ice ,

and land of Canadian Arctic. According to section 2 of the AWPPA, arctic waters are: 1) the

internal waters of Canada, 2) its territorial sea, 3) exclusive economic zone (EEZ) within the

area enclosed by 1) the 60th of north latitude, 2) the 141st meridian of west longitude, and 3)

the outer limit of EEZ on the boundary with Greenland.

Arctic Waters Pollution Prevention Regulations, current to 30 January 2018100 was

established under the AWPPA with detailed provisions. Such model (the AWPPA and the

regulations) is an example of Canadian Arctic-specific legislation, which could be used as

one of the ways to develop Canadian regulation on the protection of Arctic biodiversity from

IAS.

Soft law instruments on climate change also provide Arctic-specific provisions, which are

relevant for further actions toward IAS problems. The federal government in collaboration

with provinces, territories and indigenous people establishes Pan-Canadian Framework on

Clean Growth and Climate Change101. According to paragraph 4.4. (4) of the Framework,

98 Ibid, p. 4-22. 99 R.S.C., 1985, c. A-12 [http://laws-lois.justice.gc.ca/PDF/A-12.pdf] (14.02.2018). 100 C.R.C., c. 354. [http://laws-lois.justice.gc.ca/PDF/C.R.C.,_c._354.pdf] (14.02.2018). 101 Pan-Canadian Framework on Clean Growth and Climate Change: Canada’s Plan to Address Climate

Change and Grow the Economy.

34

federal, provincial and territorial support for adaptation efforts and protection of Arctic

ecosystems is a new action for supporting particularly vulnerable regions as a part of a plan

in adaptation and climate resilience.

As monitoring and prevention are critical actions concerning IAS problem, and new

industries in developing north territories could be a source for new IAS introduction,

regulation on Canadian Arctic territories could be a contribution into the issue in part of the

legislation on environmental and socio-economical assessment and planning. Thus, the

purpose of An Act to establish a process for assessing the environmental and socio-economic

effects of certain activities in Yukon, current to 30 January 2018, last amended on 14

December 2017 (the Yukon Environmental and Socio-economic Assessment Act)102 is to

ensure that before launching a project environmental issued was considered (paragraph 5 (2)

(b), and to protect and maintain environmental quality and heritage resources (paragraph 5

(2), (c). The Act recognizes the environment as Earth components, which include, in

particular, living organisms and the interacting natural systems (subsection 2 (1). Thus, the

protection of the environment by the Act should include among other things ecosystems and

biodiversity protection.

Acts on two other northern territories of Canada provide norms on environmental protection

similar to Yukon Environmental and Socio-economic Assessment Act. Among them are An

Act to provide for an integrated system of land and water management in the Mackenzie

Valley, to establish certain boards for that purpose and to make consequential amendments

to other Acts, current to 30 January 2018, last amended 12 December 2017 – Mackenzie

Valley Resource Management Act103 and An Act respecting land use planning and the

assessment of ecosystemic and socio-economic impacts of projects in the Nunavut

Settlement Area and making consequential amendments to other Acts, current to 30 January

2018, last amended on 12 December 2017 – Nunavut Planning and Project Assessment

Act104.

Despite an absence of IAS provisions in Arctic-specific legislation of Canada, the following

should be concluded. Canada shows its environmental concern in its Arctic policy which

102 S.C. 2003, c. 7 [http://laws-lois.justice.gc.ca/PDF/Y-2.2.pdf] (14.02.2018). 103 S.C. 1998, c. 25 [http://laws-lois.justice.gc.ca/PDF/M-0.2.pdf] (14.02.2018). 104 S.C. 2003, c. 14, s. 2 [http://laws-lois.justice.gc.ca/PDF/N-28.75.pdf] (14.02.2018).

35

reflects in Arctic-specific regulation (on water pollution prevention). This model of a ruling

(Arctic-specific sectoral act and regulations under the Act) could be a base for future legal

development concerning IAS problem. The other Arctic-specific means of applicable

regulation are the norms on environmental assessment and planning in Arctic territories

(Yukon, Northwest Territories, Nunavut). The next section provides an overall conclusion

for the chapter.

3.4 Conclusion

The legal framework on IAS in Canada can be characterized by following:

1. Canadian legislation and policy documents illustrate that Canada officia l ly

recognizes IAS as a problem.

2. Canadian federalism frames legislative attitude towards the problem. Canada is a

federation of ten provinces and three territories, where provinces have strong

legislative powers in different issues concerning the environment, which is an

obstacle for establishing overarching federal environmental policy and legislation.

3. All three territories of Canada are located in the Arctic (Yukon, Northwest

Territories, Nunavut). Canadian Arctic also includes to some extent other areas.

4. Federal legislation on IAS is fragmented, sectoral based and uses different

terminology. The most detailed federal regulation is about aquatic invasive species.

5. Soft law mechanisms and climate change frame could be unifying factors in federal

approach towards the IAS problem.

6. Provinces have different legal instruments towards the IAS problem. Ontario

Invasive Species Act and Regulation under the Act with their detailed provisions,

IAS list approach, and strict sanctions including fines, imprisonment, and restrictions

in activities is an example of innovative umbrella regulation for biodivers ity

protection from IAS at the provincial level.

7. Canadian province Quebec is participating in inter-jurisdictional cooperation with

the US states Vermont and New York on the common management of Lake

Champlain including cooperation on IAS problem which also could be used as a

model for further regulation of the biodiversity protection from IAS both at nationa l

and sub-national levels.

8. Arctic-specific regulation while does not provide rules on IAS problem shows

Canada’s concern on environmental protection of the Arctic (especially, concerning

36

Arctic waters’ protection from pollutions by specific Act and Regulations, which also

could be a base for further legislation on Arctic biodiversity protection from IAS).

9. Legislation concerning environmental assessment and planning before launching

new projects in the Arctic (Yukon, Northwest Territories, and Nunavut) also could

be regarded as a part of a legal framework for the protection of Arctic ecosystems

from IAS.

37

CHAPTER 4. A LEGAL FRAMEWORK ON INVASIVE ALIEN

SPECIES IN RUSSIA

4.1 General outline

The pattern of discussion on the legal framework of the Russian Federation towards

biodiversity protection from IAS will be the same as in case of Canada. First, the chapter

gives a general outline on the situation with IAS in Russia, draws attention on a specific ity

of Russian federalism concerning environmental legislation and shows, which territories of

the Russian Federation recognized as the Arctic territories. Then, section 4.2 observes

Russian legislation on IAS both from federal and regional (subjects of the Russian

Federation) perspectives. Section 4.3 provides information on Arctic-specific legisla t ion

relevant to the topic (including legislation of the subjects of the federation). Section 4.4 will

give an overall conclusion of the chapter.

Russian and foreign authors recognize the problem of IAS in Russia and the significant

amount of scientific literature is devoted to the IAS discussion. However, the discourse is

mainly a prerogative of natural science105, while social science does not have the issue in its

focus; especially this note concerns remote areas of Russia. M.V.Olonova and Y. Zhang

explain an absence of attention towards IAS in Siberia by low agricultural productivity and

low density of population in the region, while severe climate in their opinion is also one of

the reasons of low interaction among species and a natural obstacle for distribution of new

species106. The authors also claim that the changing climate and enhancing economic

activity will change the situation and force drawing attention towards the issue107. This

observation could also be relevant to the issue at the Russian Arctic.

105 Some examples of modern research on IAS in Russia are: Korzun-Kassal 2012, p. 57-65 (Корзун – Кассал

2012, c. 57-65) (the research conducting in Omsk Region, Russia shows that among 22 fish of Omsk basin 14

are native and 8 are alien, one of alien species - Carassius auratus was intentionally human introduced and

now forms 90 % of local fisheries); Abramova 2012, p. 324-330 (Абрамова Л.А. 2012, c. 324-330) (In the

Bashkortostan Republic of the Russian Federation the share of invasive spices is from 10 to 99 % depending

on the location, mainly the invasive species are of North American origin and the largest invasion was in 1975

from Russian southern regions and Ukraine when during the drought seeds of invasive plants were introduced

with feed. The distribution of invasive species in the region achieved 180 species, including 28 IAS and more

than 40 potentially IAS. One of the main threat to local biodiversity is IAS of Ambrosias. They also affect

human health (allergy); Shchuka – Shchuka 2016, p. 86-108 (Щука – Щука 2016, с. 86-108). 106 Olonova – Zhang Journal of Arid Land. 2013, p. 428-433. 107 Ibid, p.430.

38

Despite restraint of social science towards IAS in Russia, natural scientists in their research

call for a widening of social involvement in combating with IAS108. Russian natural

scientists also launch the projects of so-called “Black books” – lists of IASs combined by

professionals in biology which provide society in general and authorities in particular with

relevant information on IAS in lack of relevant legislative norm and other sources109.

Inspired by “Black book of flora of Central Russia”, published in 2010, “Black book of flora

in Tver Region” was created and now scientists actively participate in their work on “Black

books” in Bryansk Region, Voronezh Region, Ivanovo Region, Kaluga Region, Lipetsk

Region, Ryazan Region, Tula Region and the Republic of Mordovia110.

For better understanding and assessment of the legislation on IAS in Russia in searching for

possible ways of its future development, this section provides main features of Russian

federalism in relation to environmental issues.

According to Art. 5 (1) of the Constitution of the Russian Federation, adopted at national

voting on 12 December 1993, in force 25 December 1993111, Russia consists of republics,

territories, regions, cities of federal importance, an autonomous region and autonomous

areas – all equal subjects of the Russian Federation. The division of jurisdiction between

Russia and its subjects is carried out as follows: in some issues Russia enjoys exclusive

jurisdiction (the Constitution provides the list of the issues), in other issues Russia and its

subjects enjoy joint jurisdiction (the Constitution provides the list of the issues), and all

remaining issues (no list in the Constitution) are the realm of exclusive jurisdiction of the

subjects.

Concerning environmental issues, the distinction of powers is following. According to Art.

71 (f)112 of the Constitution, the establishment of the principles of federal policy and federal

programs of environmental development is an issue of exclusive jurisdiction of Russia. The

Russian Federation adopts the federal constitutional law and federal law for these issues,

which have direct action at the whole territory of Russia (Art. 76 (1).

108 Abramova 2012, p. 330. (Абрамова Л.А. 2012, c. 330). 109 Starodubtseva-Morozova-Grigorjevskaya 2014, p. 133-149 (Стародубцева – Морозова – Григорьевская

2014, c. 133-149). Black book of Central Russia (Черная книга флоры Средней России. Чужеродные виды

растений в экосистемах России: Экспансия чужеродных видов). 110 Ibid, p. 133. 111 Rossijskaya Gazeta. 1993. December 25. 112 In numeration according to the Russian alphabet – Art. 71 (e).

39

Nature utilization, protection of the environment, ensuring of ecological safety, specially

protected natural territories (Art. 72 I113, land, water, and forest legislation, legislation on

subsoil and environmental protection legislation (Art. 72 (j)114 are the issues of joint

jurisdiction. According to Art. 76 (2) of the Constitution, the Federation adopts legisla t ion

and subjects – their laws and other normative acts according to the federal legislation.

Thus, IAS is emerging issue in Russia, well established in natural science and predictably

drawing attention in social sphere especially considering climate change and further

development. Russian federative structure allows the federal level to establish its

environmental policy and together with the subjects of the Russian Federation develop

environmental legislation. This is a general context for addressing IAS legal issues.

In order to distinguish general legislation on IAS and Arctic-specific legislation towards the

issue, the delimitation of Russian Arctic is significant. Presidential Decree, 02 May 2014, #

296 “On overland territories of the Arctic zone of the Russian Federation”115 provides the

ground for the delimitation and Figure 2 reflects such an approach.

According to the Decree, following Russian overland territories are Arctic (numbers on the

map, Fig. 2 correlates to numbers providing further): 1. Murmansk Region, 2. Republic of

Karelia (some parts of the Republic), 3. Arkhangelsk Region (some parts of the Region,

including city Arkhangelsk), 4. Nenets Autonomous Area, 5. Komi Republic (city of

Vorkuta), 6. Yamal-Nenets Autonomous Area, 7. Krasnoyarsk Territory (some parts), 8.

Republic of Sakha (Yakutia) (northern parts of the Republic), 9. Chukotka Autonomous

Area. The decree also recognizes Arctic islands as overland territories of the Arctic zone.

While Canadian approach is strictly geographical, the Russian one is administrat ive.

Nevertheless, the provisions of the Decree mainly reflect the geographical perspective to

define territories as the Arctic if they are located north of the Arctic Circle.

113 In numeration according to the Russian alphabet – Art. 72 (д). 114 In numeration according to the Russian alphabet – Art. 72 (к). 115 Sobranie zakonodatelstva RF. 2014. 5 May. # 18. Part I. st. 2136.

40

Figure 2. Russian Arctic Zone116.

Following this distinction, section 4.2 concentrates on Russian legislation on IAS binding

for all territories of the country and observes some legislation of non-Arctic subjects of the

Russian Federation, section 4.3 focuses on legislation relevant for the overland Arctic

territories mentioned above and other types of territories of the Arctic under Russian

jurisdiction.

4.2 Russian legislation on invasive alien species

4.2.1 Federal legislation

This subsection, first, provides information on Russian legislation concerning IAS problem

combining with legal norms and policy documents concerning biodiversity protection and

climate change, wrapping up by the observation of other regulation, which provides tools

for prevention of introduction of IAS and could be used for combat with the IAS.

Overarching holistic legal document towards the issue on the federal level is absent and

regulation is quite fragmented. Notwithstanding, legal acts and program documents provides

tools and instruments towards the problem.

116 Regnum: Арктическая зона Российской Федерации (the Arctic Zone of the Russian Federation).

41

Some acts address IAS directly even using this term (in Russian – “инвазивные

чужеродные виды”, “invasivnye chuzherodnye vidy”). The Fundamentals of state policy in

the field of environmental development of the Russian Federation for the period until 2030

approved by the President of the Russian Federation, 30 April 2012117 is one of the examples

of direct mentioning of IAS. According to its para. 16 (d)118, prevention of uncontrolled

distribution IAS of animals, plants, and microorganisms on the territory of the Russian

Federation – is one of the mechanisms to cope with the task of nature conservation includ ing

ecosystems. Solving of problems of North and Arctic are also mentioned in this document

as one of such mechanisms (para. 16 (f)119.

Order of the Government of the Russian Federation 18 December 2012 # 2423-r approved

Action Plan for the implementation of the Fundamentals of state policy in the field of

environmental development of the Russian Federation for the period until 2030120. Ministry

of Agriculture, Rosleshoz (Federal Agency on Forestry), executive agencies of the subjects

of the Russian Federation and the Russian Academy of Science are responsible executors

for the provisions of the Action Plan concerning monitoring of IAS (para. 35).

Prevention of uncontrolled distribution of IAS on the territory of the Russian Federation and

elimination of consequences of such proliferation is one of the measures for in situ

conservation of population under the Strategy for the Conservation of Rare and Endangered

Species of Animals, Plants and Mushrooms approved by the Order of the Ministry of Natural

Resources of the Russian Federation 06 April 2004 # 323 (section 3.4121).

Comprehensive System of Statistical Indicators of Environmental Protection in the Russian

Federation, taking into account international recommendations approved by the Order of

Rosstat (Federal Service of state statistics) of 14.11.2017 # 754 (the Comprehensive

117 The document has not been published.

[http://www.consultant.ru/cons/cgi/online.cgi?req=doc&ts=1860309640046961918617210696&cacheid=51

BE7DBE0C484B1872661F92017B2379&mode=splus&base=LAW&n=129117&rnd=0.4082553273822651

#010092534245016582] (15.02.2014). 118 In numeration according to the Russian alphabet – 16 (г). 119 In numeration according to the Russian alphabet – 16 (e). 120 Sobranie zakonodatelstva RF. 2012. 24 December. # 52. st. 7561. 121 The document has not been published.


BE7DBE0C484B1872661F92017B2379&mode=splus&base=LAW&n=99311&rnd=0.4082553273822651#

08593287340435475] (15.02.2018).

42

System)122 is another example of directly mentioned IAS. Under the Comprehensive System,

IAS is one of the indicators of environmental protection.

According to the Comprehensive System, Rosstat combines information on the environment

in Russia from official sources following different criteria including climate change, air

pollution and ozone depletion, biodiversity and others. Para. 4.17 of the Comprehensive

System defines IAS as one of the indicators for biodiversity. Rosselkhoznadzor (Federal

Service for Veterinary and Phytosanitary Surveillance) and Rosleshoz are the authorit ies,

which provide an official information on IAS (para. 4.17).

Other documents clarify powers, obligations, and interconnection of these authorit ies

concerning IAS. Thus, Rosleshoz annually submits to Rosselkhoznadzor data on the

detection of invasive and quarantine species of pests identified by the results of state forest

pathological monitoring (section 11 of Regulations on the implementation of pest risk

analysis approved by the Decree of the Government of the Russian Federation, 10 August

2016, # 770123). The organization of phytosanitary control (quarantine) of forests includin g

assessment of risks of distribution of invasive species is also one of the component of the

Strategy for development of the forestry complex of the Russian Federation for the period

until 2020, approved by the Order of the Ministry of Industry and Trade of the Russian

Federation # 248 and the Ministry of Agriculture of the Russian Federation # 482, 31 October

2008 (para. 6.4.4.)124.

These were the provisions of documents where IAS are directly mentioned. Mainly these

documents are the policy documents approved by the President, the Government, and

executive bodies (strategies, action plans, orders) concerning the necessity for monitor ing

and implementing prevention measures towards IAS issues.

This section further outlines laws concerning different aspects of the problem of biodivers ity

protection from IAS in Russia. Federal Law on the protection of the environment, 10 January

122 The document has not been published. [http://www.garant.ru/products/ipo/prime/doc/71709518/]

(15.02.2018). 123 Sobranie zakonodatelstva RF. 2016. 15 August. # 33. st. 5194. 124 The document has not been published.


BE7DBE0C484B1872661F92017B2379&mode=splus&base=LAW&n=99108&rnd=0.4082553273822651#

0006978445722725879] (15.02.2018).

43

2002 # 7-FZ125while does not mention IAS directly remains the main legislative act on the

environment. Further development of Russian environmental law should be by amending

the provision of this Law or acts established under its umbrella. In its preamble, Federal Law

on the protection of the environment recognizes biodiversity protection as part of state

environmental policy. Art. 3 of the Federal Law identify biodiversity protection also as one

of the principles of Russian environmental law. Art. 2 (1) of the Federal Law confirms that

system of Russian environmental norms consists of the provisions of the Constitution of the

Russian Federation, the provisions of this Federal Law, other Federal Laws and normative

acts of Russia and the subjects of the Russian Federation. The analyzing Federal Law also

introduces such mechanisms towards environmental protection as state monitoring of the

environment and control embedding prevention, detection, and suppression of

environmental offences.

Federal Law on the animal world, 24 April 1995, # 52-FZ126 in its preamble identifies animal

world as a part of the biodiversity of the Earth and renewable natural resource. The Federal

Law also defines the animal world as a unity of animals in the conditions of their natural

freedom, which permanently or temporally inhabit the territory of Russia (Art.1). In light of

IAS issue, Art. 25 of the Federal Law is critical. Its provisions require receiving permissions

of specially authorized state bodies of the Russian Federation, a conclusion of competent

scientific organizations considering environmental safety for following actions: 1)

acclimatization in Russia fauna objects with are new for Russia; 2) relocation of fauna

objects to new habitats; 3) hybridization of fauna objects.

Administrative Regulations of the Federal Service for Supervision in the Sphere of Nature

Management (Rosprirodnadzor) on the provision of a state service for issuing permits for

the relocation of fauna to new habitats, approved by the Order of the Ministry of Natural

Resources of Russia, 21 March 2012 # 70127 is a document establishing the procedure for

issuing the permits. According to its provisions (section 12), negation scientific conclusion

is one of the bases for refusal of authorization for relocation. Art. 50 of Federal Law on

hunting and on the conservation of hunting resources and on amending certain legisla t ive

125 Sobranie zakonodatelstva RF. 2002. 14 January. # 2. st. 133. 126 Sobranie zakonodatelstva RF. 1995. 24 April. # 17. st. 1462. 127 Rossijskaya Gazeta. 2012. 31 October. # 251.

44

acts of the Russian Federation, 24 July 2009, # 209-FZ128 also requires scientif ic

recommendations for a relocation of hunting resources into the new environment.

The breach of rules on relocation species leads to administrative penalties – fine of 1 000 –

1500 rubles for persons (approximately 15-20 euros129) or 20 000 – 30 000 rubles for

companies (approximately 300 – 400 euros), Art. 8.36 of the Code of the Russian Federation

on Administrative Offences (CAO), 30 January 2001, # 195-FZ130. Thus, norms of the

Russian legislation provide legislative tools for prevention of release and spread of IAS

during interterritorial relocation of species, connecting scientific communities and

authorities in decision-making and establishing penalties for breaching the rules, while the

issues of scope (hunting), effectiveness of measures and sufficiency of penalties for

prevention of offences could be debatable.

State authorities also conduct measures for nature conservation and protection of the

environment on border control (Law on the state border, 01 April 1993, # 4730-1131). Federal

Law on quarantine of plants, 21 July 2014, # 206-FZ132 one of the purposes of which is the

protection of territory of Russia from introduction and propagation of quarantine species

establishes comprehensive measures including measures on the importation of species into

Russia.

Under the Federal Law on quarantine of plants Rosselkhoznadzor established the lists of

three groups of species (each group is also subdivided into parts combining plants, animals,

fungus and other species): 1) quarantine objects which are harmful organisms not existing

in Russia (for example, Азиатская хлопковая совка (Spodoptera litura Fabr.), 2) quarantine

objects which are harmful organisms of limited distribution in Russia (for example,

Амброзия многолетняя (Ambrosia psilostachya DC.), 3) non-quarantine objects which are

regulated harmful organisms (Бактериальная пятнистость листьев косточковых

(Xanthomonas arboricola pv. Pruni (Smith) Vauterin et al.), Order of the Ministry of

128 Rossijskaya Gazeta. 2009. 28 July. # 137. 129 Here and further in calculation 70 rubles are equal to 1 euro. 130 Rossijskaya Gazeta. 2001. 31 December. # 256. 131 Rossijskaya Gazeta. 1993. 4 May. # 84. 132 Rossijskaya Gazeta. 2014. 23 July. # 163.

45

Agriculture of Russia on approval of the List of quarantine objects, 15 December 2014, #

501133.

Concerning quarantine regime, it is also should be mentioned that the Council of the

Eurasian Economic Commission approved a single list of quarantine objects of the Eurasian

Economic Union (Decision, 30 November 2016 # 158134, Russia is a party of the Union).

Breach of rules on the struggle against quarantine species, other hazardous for plants species

and pests constitutes an offence (fine – 300-500 rubles (approximately 4-7 euros) for persons

and 5 000 – 10 000 rubles (approximately 70-140 euros) for companies (Art. 10.1 of the

CAO of the Russian Federation). Notwithstanding, if a breach of such rules entailed serious

consequences this constitutes a crime with penalties up to 120 000 rubles (approximate ly

1 700 euros) of fine or fine in an amount which is equal to the annual income of the

perpetrator, or restriction of freedom up to two years (Art. 249 of the Criminal code of the

Russian Federation, 13 June 1993, # 63-FZ135).

Thus, while Russia does not have a single law on IAS, the protection of biodiversity from

IAS is recognized as a priority in such documents as the Fundamentals of state policy in the

field of environmental development of the Russian Federation for the period until 2030

approved by the President of the Russian Federation and other documents approved by the

Government and authorities of executive branch of power.

The legislation as such provides tools which also applicable for combating against IAS. They

are the norms of legislation on the protection of the environment, animal world, border

control and quarantine of plants. Sanctions of the CAO of the Russian Federation and the

Criminal Code protect the substantive provisions of the mentioned legislation. Amendments

and interpretation of existing legislation could be used as a part of legal development

concerning biodiversity protection from IAS in Russia, while creation of overarching

normative act on IAS is a welcome development. A quite centralized system of Russian

federalism makes it real to establish federal policy and law on protection of the environment

133 Rossijskaya Gazeta. 2015. 23 January. # 12/1. 134 https://docs.eaeunion.org/docs/ru-ru/01413202/cncd_06032017_158 (16.02.2017). 135 Sobranie zakonodatelstva RF. 1996. 17 June. # 25. st. 2954.

https://docs.eaeunion.org/docs/ru-ru/01413202/cncd_06032017_158

46

and biodiversity as its part, which should be considered in the development of the legal

framework.

Next subsection will assess legislation of the subjects of the Russian Federation concerning

IAS and the role of the subjects concerning the issue.

4.2.2 Legislation of the subjects of the Russian Federation

Previously this chapter pointed out that Russia can establish federal environmental policy,

but environmental legislation is a realm where Russia and its subjects enjoy joint

jurisdiction, which means that subjects establish their own regulation under the federal one.

Considering IAS problem regulation of subjects of Russia can be divided in following groups

which will be consequently observed further: 1) regulation for implementation of the

Fundamentals of state policy in the field of environmental development of the Russian

Federation for the period until 2030; 2) other strategies, action plans and programs of the

subjects; 3) subjects’ legislation on forests; 4) other regional documents concerning IAS

problem. Local (municipal) acts considering the biodiversity protection from IAS will wrap

up this subsection.

Some subjects establish their own acts for implementation of a federal document – the

Fundamentals of state policy in the field of environmental development of the Russian

Federation for the period until 2030, which recognize prevention of uncontrolled distribution

of IAS as one of the mechanisms to cope with the task of nature conservation. Among these

subjects are Republic of Buryatia, Republic of Mari El, Chuvash Republic, Kursk Region,

Tambov Region, Tula Region, and Khanty-Mansi Autonomous Area – Yugra.

Thus, para. 4.6 the Action Plan of the Republic of Buryatia for the implementation of the

Fundamentals of State Policy in the Field of Ecological Development of the Russian

Federation for the period up to 2030 approved by of the Order of the Government of the

Republic of Buryatia, 28 October 2013 # 706-r136 enshrines that operational detection of

invasive species in forests of the Republic implements by agreement and in coordination

with branch of the Federal budgetary institution “Rosleszashita” “Forest Protection Center

136 Sobranie zakonodatelstva RB. 2013. # 11 (176). Part II.

47

of the Republic of Buryatia”. The Review of this organization for 2012-2013 points out that

despite existence of pests in forests of the Republic they are not IAS137.

Strategies and regional concepts are the other types of documents of the subjects. Sections

3.1.4 and 5.2.8 of the Strategy for the conservation of biological diversity in the Sakhalin

Region for the period up to 2025 approved by the Decree # 263 of the Government of the

Sakhalin Region, 07 June 2017138, considering insular specific of Sakhalin ecosystems

highlight the problem of IAS for the region especially the problem of aquatic IAS. The

Strategy describes ballast waters from oil tankers and gas carriers as a main source of IAS.

The sections of the Strategy mentioned above point to the need for inventory and monitor ing

of IAS, control of ballast waters, assessment of the impact of IAS on local biodiversity and

ecosystems. The future results of the implementation of this Strategy are critical for the

development of regional legislation concerning IAS in particular for the regions of the Arctic

zone considering ballast waters risks.

The other examples of regional strategies and concepts considering IAS problem are the

Order of the Government of the Khabarovsk Territory, 31 December 2013, # 978-rp on the

implementation of the Strategy for Ecological Safety of Khabarovsk Territory for the period

until 2020 approved by the decree of the Government of the Khabarovsk Territory, 11

December 2010, # 758-rp139 and the Kabardino-Balkar Republic’s Security Concept for

2013-2015 approved by the Order of the Head of the Kabardino-Balkar Republic # 128-RG,

24 December 2012140. The former requires the establishment of regional IAS monitoring

system in forests no later than 2030 (para. 35) and the latter recognizes IAS as an external

threat for the Republic and requires enhancing of international cooperation of the Republic

to cope with the problem (para. 29, 39).

Programs are another type of regional documents concerning IAS problem. The specific ity

of the programs is the accumulation of money from different sources (federal, regional, local,

and non-budgetary finance) for the realization of measures established under the program.

137 Branch of the Federal budgetary institution “Rosleszashita” “Forest Protection Center of the Republ ic of

Buryatia”: Review of sanitary and pathological status of forests of the Republic of Buryatia for 2012 and

prediction of pathological situation for 2013. 138 Gubernskie vedomosti. 2017. 28 July. # 134 (5262). 139 The document has not been published. [https://www.lawmix.ru/zakonodatelstvo/2373880] (17.02.2018). 140 Offitsialnaya Kabardino-Balkariya. 2013. 11 January. # 1.

48

Such subjects as Altai Territory, Kemerovo Region, Ulyanovsk Region, Yaroslavl Region

established the programs. The Program of the Altai Territory in its provisions concerning

general outline of the Program highlights the increasing activity of new invasive species –

polighraph ussurijskij (полиграф уссурийский) in local forests and note to an absence of

developed methods and tools for struggling against them (the State program of the Altai

Territory on environmental protection, reproduction and rational use of natural resources,

development of forestry in the Altai Territory for 2015 – 2020 approved by the Resolution

of the Administration of the Altai Territory, 23 October 2014 # 494 (section 4 of part 1141).

Protection of forests forms another part of the legislation of the subjects of the Russian

Federation. Forest legislation concerning IAS problem exists in following subjects: Republic

of Buryatia, Altai Territory, Krasnodar Territory, Kemerovo Region, Nizhny Novgorod

Region, Novosibirsk Region, Tyumen Region, Khanty-Mansi Autonomous Area – Yugra.

The Forest Plan of the Kemerovo Region approved by the Resolution of the Governor of the

Kemerovo Region, 28 January 2009 # 6-pg recognizes polighraph ussurijskij (полиграф

уссурийский) which was already mentioned above among IAS causing significant harm to

the Kemerovo forests (table 42)142.

The other forms of legal response towards IAS problem in the subjects of the Russian

Federation include: deputy requests for an action concerning IAS (Decree of the Legisla t ive

Assembly of the Krasnodar Territory on the deputy requests for an action…, 22 October

2014, # 1293-P143), rules on usage of pesticides on protected territories allowing

implementation of technologies with pesticides to control IAS (section 10.1 of the Decree of

the Government of the Nizhny Novgorod Region on the reorganization of specially protected

natural areas, 16 September 2013, # 651144), rules of hunting establishing that introduction

of new species negatively impacts on ecosystems that is why some areas (in the example –

the whole territory of the Sverdlovsk Region) should be free from human introducing new

species (chapter 22 of the Decree of the Governor of the Sverdlovsk Region on the approval


[http://www.consultant.ru/regbase/cgi/online.cgi?req=doc&cacheid=685AA0D4DF87659B69A6E9789D655

8CF&BASENODE=23568&base=RLAW016&n=71942&rnd=0.22883639871449102#08094956587883029

] (17.02.2018). 142 Information bulletin of the Board of Administration of the Kemerovo Region. 2009. # 2. Parts I, II. 143 Information bulletin of the Legislative Assembly of the Krasnodar Territory. 2014. 7 November. # 23. 144 Pravovaya sreda. 2013. 4 October. # 115, 116 (1671, 1672).

49

of the scheme for the allocation, use and protection of hunting areas in the Sverdlovsk

Region, 15 April 2015, # 180-UG145).

Legal frameworks on IAS in subjects of the Russian Federation among plans, strategies,

programs, and restricting rules also contain incentives. Thus, some subjects of the Russian

Federation stimulate research conducting on IAS problem (Decree of the Administration of

the Altai Territory on the approval of the list of directions and topics of scientific research

for 2016, 28 April, 2016 # 149146), other subjects introduce absence of IAS and protection

of biodiversity as criteria for municipalities to participate in a competition for the best village

(Decree of the Government of the Ulyanovsk Region on holding the annual regional contest

for the most beautiful village of the Ulyanovsk Region among rural settlements of the

Ulyanovsk Region, 08 September 2015, # 445-P147).

To wrap the section on regional legislation in Russia up the section will provide some

examples from local level of regulation. Some municipalities launch municipal programs for

control of IAS (Decree of the Administration of the municipality – Kornevskoe rural

settlement of Skopinsky municipal district of the Ryazan Region on approval of the

municipal target program on struggle against the hogweed Sosnovsky in the municipality –

Kornevskoe rural settlement of Skopinsky municipal district of the Ryazan Region for 2012,

17 October 2011, # 33148), the others use an absence of invasive plants as a criteria in

competitions among territories (the Regulations on the District Competition for the

Improvement of Territories of Municipalities of the Tyumen Municipal District approved by

the Resolution of the Administration of the Tyumen Municipal District, 26 April 2017, # 32,

section 4.1.3, Annex II149).

In this way, Russian legislation towards IAS problem reflects general features of Russian

federalism concerning environmental issues. Federal level establishes environmental policy

documents, which are binding for the whole territory of Russia. Environmental law is a realm

of the joint jurisdiction of Russia and her subjects which means that despite mandatory

145 Sobranie zakonodatelstva Sverdlovskoj oblasti. 2015. 15 July. # 4-4 – 4-8. st. 616. 146 The document has not been published. [http://docs.cntd.ru/document/438885959] (17.02.2018). 147 Ulyanovskaya Pravda. 2015. 10 September. # 126 (23.767). 148 Information bulletin of Kornevskoe rural settlement of Skopinsky municipal district . 2011. 17 October. #

55. 149 Krasnoje znamya. 2017. 28 April. # 34.

50

character of federal regulation for the whole territory of the country the subjects can create

their own rules reflecting their specificity. Thus, while mainly subjects establish their plans

of action or other documents for implementation of federal norms, some of them also go

further and establish documents concerning local specificity towards the issue as ballast

water control in Sakhalin or prohibition of human-made introduction of new animals into

territories of the subject as in case of the Sverdlovsk Region. Subjects of the Russian

Federation use not only command and control approach but also incentives and nudges

addressing IAS problem (as in case of an absence of IAS in the area as a requirement for

participation in local competitions among municipalities).

On the one hand, further legal development concerning biodiversity protection from IAS in

Russia should consider a high-centralized system of Russian federalism and possibility for

launching regulation binding for the whole territory from federal center. On the other hand,

this development should take into account possibility of subjects of the Russian Federation

to create their own regulatory frameworks under federal one combining reflection of

specificity of the regions with different modes of regulation including both command and

control and incentives. Next section observes legislation relevant to biodiversity protection

from IAS at the Arctic zone of Russia.

4.3 Arctic-specific Russian legislation relevant to the protection of Arctic ecosystems


Section 4.2 has shown that despite the existence of different legal norms to some extent

relevant to IAS issues there is no unified single act reflecting a general legal attitude towards

the problem. The same is true concerning the Arctic-specific legislation on protection of the

Arctic ecosystems from IAS. That is why the focus of this section is on different pieces of

Russian Arctic-specific law, which is somehow used or could be used for protection of

biodiversity of the Arctic. The general federal legislation is applicable as well.

First, the section will provide an information on the legal approach of Russia towards the

Arctic, combining with an observation of main aspects of Russia’s policy in the Arctic and

positions of legal science on the development of Russian Arctic-specific environmental law.

Then, the section will observe legislation of the subjects of the Russian Federation located

in the Arctic zone relevant to the topic wrapping up by the general conclusion.

51

The beginning of XXI century has shown increasing interest of Russia in the Arctic which

is reflected in documents on development in the area. Main of them are: 1) the Fundamenta ls

of the state policy of the Russian Federation in the Arctic for the period until 2020 and

beyond approved by the President of the Russian Federation, 18 September 2008, # Pr-1969

(the Fundamentals of the Arctic policy)150; 2) the Strategy for the development of the Arctic

zone of the Russian Federation and ensuring national security for the period until 2020

approved by the President of the Russian Federation (the Strategy for the Arctic

development)151; 3) the State program of the Russian Federation on socio-economic

development of the Arctic zone of the Russian Federation approved by the Decree of the

Government of the Russian Federation, 21 April 2014 # 366 (the State program on the Arctic

zone)152; 4) the Regulations on the State Commission for the Development of the Arctic

approved by the Decree of the Government of the Russian Federation, 14 March 2015 # 228

(the Regulations on the Commission)153.

Despite no one of these documents mention IAS directly they concern environmenta l

regulation in the Arctic. Thus, the Fundamentals of the Arctic policy recognize the fragility

of the Arctic ecosystems as a feature to be integrated into Arctic policy (para. 3 (d)154,

identify protection of the Arctic ecosystems as the national interest (para. 4 (c)155, and set a

task to protect the Arctic biodiversity by enlarging specially protected areas and to protect

ecosystems considering development and climate change (para. 8 (c)156. The Strategy for the

Arctic development reflects the same concepts clarifying that specially protected areas could

be of federal or regional importance and establishes the necessity to conduct environmenta l

monitoring and enhance a control (para. 16 a). The Commission established for coordination

of activities of different stakeholders in the Arctic (para. 1 of the Regulations on the


[http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=LAW&n=119442&rnd=9CD0191B57691AF6

A11F8FDBE26F7135#032469207273451095] (18.02.2018). 151 The document has not been published.


856B30714F6B607A4B6D4D4CF0D80E&mode=splus&base=LAW&n=142561&rnd=4B369EB9396F90F3

D8ADCBA0A13784C6#020162618426994128] (18.02.2018). 152 Sobranie zakonodatelstva RF. 2014. 5 May. # 18 (part IV). st. 2207. 153 Sobranie zakonodatelstva RF. 2015. 30 March. # 13. st. 1928. 154 In numeration according to the Russian alphabet – 3 (г). 155 In numeration according to the Russian alphabet – 4 (в). 156 In numeration according to the Russian alphabet – 8 (в).

52

Commission) should also implement new regulation for environmental protection during

economic and other activities in the Arctic (para. 5 (f)157 of the Regulations).

These provisions could be a base for future legal development concerning IAS problem.

Notwithstanding, features of Russian Arctic policy and critical approach of researchers

towards existing Arctic environmental law requires to make some remarks. Thus, as K. Zysk

claims the ambitious plans of Russian authorities towards the Arctic and establishing

deadlines usually delay because of political tensions after Ukrainian crisis, lack of

technological and other capacities, discoordination of attitudes of different stakeholders

involved and different policies (traditional national defense and development, to name but a

few)158. She also believes that despite these features the Arctic will remain in focus of

Russian policy combining intention of the country to maintain its status as a leading Arctic

power with Arctic energy resources exploitation and considering the Northern Sea Route159.

Russian environmental law researchers E. Gladun and N.I. Khludeneva point out that Russia

needs coherent approach towards Arctic law and policy including Arctic environmenta l

law160. They believe that the special law (special legal regime) on the Arctic ecosystems is

a welcome development161. It should contain concrete mechanisms, enhance the role of the

science in development planning, consider the specificity of the Arctic territories, combat

with the weakness of enforcement, and introduce a system of environmental management162.

Probably, it is also true to say that features mentioned above (such as a lack of concrete

mechanisms and weak enforcement) also relevant to IAS general legislation in Russia

discussed in the previous section. Nevertheless, enforcement of environmental norms is a

problem not only in Russia but also in many countries and probably one of the weakest

features of environmental regulation in general.

The section observes further the legislation of the subjects of the Russian Federation

including in the Arctic zone relevant to the protection of Arctic biodiversity from IAS. As

section 4.3 describes, some subjects of the Russian Federation establish legal documents for

157 In numeration according to the Russian alphabet – 5 (e). 158 Zysk 2015, p. 437-461. 159 Ibid. 160 Gladun Russian Law Journal 2015, p. 92-109; Хлуденева Н.И. Журнал российского права 2015, с. 114-

122 161 Ibid. 162 Ibid.

53

implementation of the Fundamentals of State Policy in the Field of Environmenta l

Development of the Russian Federation including its provisions on IAS. This type of

documents exists in one of the Arctic subjects – the Republic of Sakha (Yakutia). Action

Plan for the Implementation of the Fundamentals of State Policy in the Field of

Environmental Development of the Russian Federation in the Republic of Sakha (Yakutia)

for the Period to 2030 approved by the Ordinance of the President of the Republic of Sakha

(Yakutia), 10 September 2013, # 794-RP163 establishes that the Ministry of Nature

Conservation of the Republic monitors IAS in the forests (para. 12) and with other authorit ies

participate in activities on decreasing and prevention of negative impact on the environment

of the Arctic zone (para. 14).

Some other Arctic subjects of the Russian Federation establish norms concerning IAS in

their forest legislation. Thus, the Forest Plan of the Republic of Karelia approved by the

Order of the Head of the Republic of Karelia, 31 December 2008, # 975-r164 in its table

1.1.8.1 requires assessment of the impact of IAS on biodiversity and establishment of

compensation measures. This Plan defines species as IAS if they appear at the territory not

only because of direct human activity but also as a result of an indirect human activity. The

other subject, which concerns IAS in its forest plan, is the Krasnoyarsk Territory. The Forest

Plan of the Krasnoyarsk Territory approved by the Decree of the Governor of the

Krasnoyarsk Territory, 26 December 2008, # 219-ug165 recognizes insect полиграф

белопихтовый уссурийский (Polygraphus poximus Blandf.) as the main IAS with

significant negative impact on forests. This IAS was first introduced on the areas of the

Krasnoyarsk Territory with wood transported by railway transport in 2009 and already in

2012-2013, it invaded critical areas. A tree dies after three-four years of presence of this IAS

on it. The Forest Plan of the Krasnoyarsk Territory requires not using non-local timber for

some types of usage, logging and cleaning the territories as measures against this IAS (tables

1.2.3.4.5, 1.2.4.3.14, 1.2.4.3.15).

The section has already mentioned proposals of Russian researchers on specially protected

areas as one of the components for protection of the Arctic environment. The Arkhange lsk

Region of the Arctic zone is one of the examples of implementation of such an approach

163 Sokunnar. Uuraahtar. D’yahallar. 2013. 17 September. # 237-239. 164 Sobranie zakonodatelstva RK. 2008. December. # 12. Part II. st. 1545. 165 Vedomosti of the highest state authorities of the Krasnoyarsk Territory. 2008. 25 December. # 70(297)/1.

54

(Law of the Arkhangelsk Region on Specially Protected Natural Territories in the

Arkhangelsk Region, 24 February 2015, # 242-14-OZ166). The problem of IAS requires

cooperation between territories for prevention of invasions. In this context it is critical that

not only Arctic regions, but also other subjects of the Russian Federation establish offic ia l

bodies for coordination of issues concerning the Arctic (as an example – Decree of the

Government of St. Petersburg on Providing Measures in the Interests of Development of the

Arctic Zone of the Russian Federation, 08 February 2018, # 93167).

Thus, Arctic-specific legislation in Russia does not contain specific regime for biodivers ity

protection from IAS. Notwithstanding, strategies, programs, and action plans highlight the

importance of conservation of the Arctic ecosystems. Further work on concretization of these

provisions, enhancing enforcement should be done both on federal and regional levels. The

subjects of the Russian Federation located in the Arctic zone establishes their own regulat ion

and programs toward the issue. Some of them launch measures against IAS as the

Krasnoyarsk Territory do to fight against insects, which are IAS threating local forests. The

development of legislation on specially protected areas and cooperation with non-arctic

territories are welcome development concerning the IAS problem.

4.4 Conclusions

Following features characterize a legal framework on biodiversity protection from IAS in

the Russian Federation:

1. The science in Russia (mainly natural science) and legislation recognize IAS as a

problem, where the science treats proactively towards the issue (creation of “Black

books of IAS”).

2. Legislation towards IAS problem reflects the specificity of Russian federalism

concerning environmental issues. The Russian Constitution confirm the ability of the

Federation to establish state environmental policy for the whole territory of the

country, while environmental legislation as such is a realm of both federal and

regional jurisdictions which means that the subjects of the Russian Federation can

establish their own rules under the federal regulation.

166 Vedomosti of the Arkhangelsk Regional Assembly of Deputies of the Sixth Convocation . 2015. # 14. 167 http://gov.spb.ru/law?hdoc&nd=1300077 (18.02.2018).

http://gov.spb.ru/law?hdoc&nd=1300077

55

3. The federal approach towards IAS problem while does not contain united

comprehensive regime for biodiversity protection from IAS is twofold:

3.1. The Fundamentals of state policy in the field of environmental development of

the Russian Federation, action plans, strategies, and programs highlight

biodiversity protection from IAS as one of the main instruments and priorities to

protect the ecosystems.

3.2. Russian Laws (as the Federal Law on the animal world and the Federal Law on

quarantine of plants) contain legal tools to be used towards the IAS problem and

Russian Criminal Code and the CAO establish penalties for breach of such rules.

4. The subjects of the Russian Federation, on the one hand, implements provisions of

the federal policy and, on the other hand, creates their own rules concerning regional

specificity (as, provisions on ballast water monitoring in the legislation of the

Sakhalin Region and norms prohibiting the introduction of IAS for hunting purposes

in the Sverdlovsk Region).

5. The subjects of the Russian Federation use not only command and control approach

but also incentives and nudges, such as stimulating research concerning the topic (the

Altai Territory) and establishing an absence of IAS as a requirement for participat ion

in competitions among municipalities (the Ulyanovsk Region). Local (municipa l)

regulation towards IAS problem also follows this way.

6. While Arctic-specific federal legislation does not contain special regime on IAS in

the Arctic, such legislation highlights the fragility of the Arctic ecosystems as a

feature to be recognized in an attitude towards the Arctic and realize protection of

biodiversity in the Arctic as a priority.

7. The legislation of the subjects of the Russian Federation located in the Arctic zone

also reflects the IAS problem; mainly in the same pattern as non-arctic subjects do

(implementation of federal policy, their own action plans, strategies and norms of

legislation, for example, regional forest legislation). Cooperation with non-arctic

subjects and development of legislation on specially protected areas are welcome

development concerning IAS problem in the Russian Arctic.

8. Development towards holistic comprehensive regime on IAS problem (and IAS in

the Arctic in particular), enhancing enforcement and concretization of general

provisions are main recommendations after the observation of Russian legal

framework on the Arctic biodiversity protection from IAS which should be

56

supplemented by an active and coordinated participation of stakeholders involved

including the scientific community.

57

CHAPTER 5. COMPARISON OF RUSSIAN AND CANADIAN LEGAL

FRAMEWORKS ON INVASIVE ALIEN SPECIES

5.1 General remarks on comparative law analysis

This chapter provides comparative part of the master’s thesis. Section 5.1 draws an attention

to comparative law analysis in general. The next section shows the specifics of comparative

environmental law. Sections 5.3 – 5.5 are devoted to the comparison of Russian and

Canadian legislation relevant to the protection of the Arctic ecosystems from invasive alien

species. The analysis is conducted at three levels: federal, regional (sub-national) and Arctic-

specific legislation. These three sections of the chapter also contain tables on the comparison.

The chapter wraps up by the section 5.6 of general conclusions.

To start with, Russian and Canadian legal systems belong to different types of the systems.

The first one is a civil law system, while the second one belongs to a common law. These

systems identify the sources of law differently: the latter highlights the role of judges in

lawmaking, while the former accept the legislation as a main source of law. Notwithstand ing,

as previous chapters of the master’s thesis shown, the legislation and policy documents of

both countries contain provisions on IAS which makes the comparison of legal frameworks

possible. While law and policy documents on IAS in both countries exist, Canada as

common law country is more open to judicial activism towards the IAS problem.

G. Dannemann claims that comparative law research could be one of two types:

macrocomparison and microcomparison, where the former focuses on comparison of such

blocks of elements as legal systems while the latter cope with concreate problems168.

Following G. Dannemann’s classification this master’s thesis is a microcomparison focusing

on analysis of the legal frameworks of two countries on the same problem. According to

P.H. Glenn, issue-by-issue analysis is one of the key features of comparative law as a process

of cumulation of knowledge169.

M. Graziadei believes that importance of comparative law is based on the statement that in

a real life legal system are strongly connected to each other, influence on development of

168 Dannemann 2006, p. 387. 169 Glenn 2006, p. 439.

58

other systems and contain elements both original and borrowing from other legal orders that

is why acceptance of legal systems as uniform and autonomous systems of rules is

unrealistic170.

Thus, comparison of Russian and Canadian legal frameworks on IAS is a microcomparison

of elements of legal systems of different types (civil law and common law) which is possible

on the reason of existing the legislation and policy documents on the same problem – IAS.

Microcomparison is prominent part of comparative law research conducting on issue-by-

issue bases. The comparison of Russian and Canadian systems also could contain elements

of novelty because both systems are still not central to comparative law realm.

The comparison does not have an aim to find out which legal system is superior towards the

problem concerned171. The evaluation is not a part of comparative analyses as such while it

could be used for better understanding of existing law, further development of legislat ion,

possible call for reforms and for understanding of diversity of responses on the same

problem172. In this term, comparative law provides a new angle to see existing law including

domestic law173.

Comparative law could be of different types such as functional comparative law where the

function of an institution is crucial despite the differences in legal forms, which institut ions

could fit in different countries, comparative legal history, comparative legal cultures and

comparison of legal transplants and receptions174.

The master’s thesis does not have an aim to compare Russian and Canadian legal systems as

such focusing on approaches of comparing countries towards the IAS problem in the Arctic

that is a microcomparison. The chapter then evaluates following elements critical for the

microcomparison: (1) searching for appropriate tertium comparationis, (2) balancing

between differences and similarities and (3) extracting shortcomings and drawbacks of

comparison.

170 Graziadei 2006, p. 474. 171 Jansen 2006, p. 336. 172 Ralf 2006, p. 373. 173 Ibid. 174 Ibid, p. 341.

59

N. Jansen claim that in comparative law comparing elements are similar or different not as

such but towards the third element – tertium comparationis175. Thus, SabT means that

elements a and b are similar towards T, where both a and b are T, T – is their common

property176. Otherwise, DabT means that a and b are different towards T, where one of the

elements (a or b) possess T, while the other does not177. Even if SabT it does not mean that

a is equivalent to b because they can possess T in different degree that is why while the

elements could be similar at the first sight they could be different in more detailed

investigation178. That is why the degree of intensity in possession of T is what matter. The

more detailed formula could be It(a) is differ from It(b)179. While comparing, T also can be

not one elements but many, a range of T: T1…n180. In this context, despite comparison and

its results reflect subjective elements such as values and perspectives of the researcher

towards the issue the more facts are combining in comparison the more objective results will

be achieved181.

In the master’s thesis combining elements are Russian and Canadian law (a and b elements).

They are comparing towards the problem tertium comparationis (T). In our case T is the

problem of finding appropriate norms addressing the protection of the Arctic biodivers ity

from IAS in light of climate change.

In this context, the concept of ideal type is critical182. Concerning the protection of the Arctic

biodiversity from IAS in light of the changing climate the ideal type is the existence in a

country legislation, which is the best, fitted to cope with the problem. While one does not

know which legislation could be an ideal and can accept the possibility of diverse response

to the same problem, the existence of legislation towards IAS in both Russia and Canada is

a starting point for comparison. If one of the countries does not see the IAS as a problem and

does not have any legislation towards IAS the comparison would be problematic. Thus, SabT

in our case is similarity of Russian and Canadian legal frameworks towards the IAS problem.

175 Jansen 2006, p. 310. 176 Ibid. 177 Ibid. 178 Ibid. 179 Ibid, p. 311. 180 Ibid, p. 315. 181 Ibid, p. 312. 182 See: Jansen 2006, p. 334.

60

The presumption of similarities makes comparative law research possible, highlights

universal values and common meaning of the problem, while differences can show features

of national identity, identify possible ways of further development183. The process of finding

a right balance in searching for similarities and differences in the comparative law research

is critical and different stages of research can require either searching for similarities or

differences184.

In other words, in order the comparison could be comprehensive, the master’s thesis will

articulate the similarities and differences of Russian and Canadian legal frameworks towards

the IAS problem at federal and regional level and in the Arctic-specific legislation of these

countries.

One of the directions within functional method of comparative law is instrumentalism, which

highlights that law is an instrument of the society to deal with its problems185.

Instrumentalists are trying to construct by comparison better law, which would fit the needs

of society in a best way possible186. The critics of such a direction point out that under this

paradigm lawyers are becoming activists, accept law as an instrument with overly

progressive functions and share such shortcomings of instrumentalism as naïve faith in

abilities of law and non-recognition of non-legal elements as culture, traditions, economy,

and other factors in such a process of social engineering187.

Thus, comparative law analysis provides an angle for better understanding of legal

frameworks towards the problem without claiming for superiority of one legal system

towards the other. It will be conduct in combination of searching for similarities and

differences at different levels of regulation and in Arctic-specific legislation. The usage of

the results of the comparison is possible only by recognition of the role of law in society and

its limits.

183 See: Jansen 2006, p. 310; Dannemann 2006, p. 387; Ralf 2006, p. 360. 184 See: Dannemann 2006, p. 418. 185 Ralf 2006, p. 351. 186 Ibid. 187 Ibid.

61

5.2 General remarks on comparative environmental law

This section will provide some features of the contemporary comparative environmental law.

These features will be guidelines for further comparison.

The share of comparative environmental law within the realm of comparative law remains

marginalized188. Nevertheless, comparative environmental law draws an attention of

scholars and could be a prominent part of modern science. This Section will generally outline

the main directions of development of comparative environmental law, focusing on

relevance of comparative environmental law research to emerging global environmental law

and climate change law agenda. Finally, the Section links the findings of such an observation

with further comparative analysis in the master’s thesis.

H.v. Asselt in his editorial article of the special issue of “Review of European, Comparative

and International Environmental Law” devoted to comparative environmental law points out

that comparative law analysis could be either traditional as comparison of laws of two

jurisdictions or more innovative189. The latter includes comparison not only national

legislations, but also international law or law of regional organizations, different regimes on

minority groups such as indigenous people190. Comparative environmental law research also

could connect an analysis of national legislations with issues of international environmenta l

law and its effectiveness191. The enquiries on the possible positive impact of comparative

environmental law into emerging global environmental law and climate change law agenda

are prominent, while remaining debatable, for example concerning the necessity to move

into interdisciplinarity methodology192.

E. Morgera believes that comparative law in its nature correlates with ideas of global

environmental law193. Thus, global environmental law as national, sub-national, regional and

international environmental law taken in its unity towards environmental problems

highlights the role of different levels of regulation and actors including professionals and

academics as active participants in finding better solutions for problems of the

188 Morgera Review of European, Comparative and International Environmental Law. 2015, p. 255. 189 Van Asselt Review of European, Comparative and International Environmental Law. 2015, p. 251-253. 190 Ibid, p. 251. 191 Ibid, p. 252. 192 Ibid, p. 253. 193 Morgera Review of European, Comparative and International Environmental Law. 2015, p. 255.

62

environment194. Comparative law crosses the national boarders in finding knowledge and

building bridges between diverse legal systems, which is possible in particular by moving

from microcomparative analysis to universal level195. In this sense, comparative law is

always transnational and has common ground with global environmental law196.

The shift from international law level to national ones in climate change law agenda is one

of the factors, which draws attention towards comparative law according to M. Mehling197.

The researcher claims that while lawyers cannot offer the diversity of solutions towards

climate change challenge their role is not limiting by dispute resolution and justification of

climate policy198. By using their own methodology, lawyers can extract the collective will

of societies, which is expressed in laws as conservative forces of societies199. Within the

wide spectrum of ideas and opinions towards climate change and responses to it, the

extracting of official collective positions of different state organized societies contribute to

knowledge by showing obstacles and innovations expressed in diverse legal world200. The

other pillar of possible contribution of comparative law in climate change science according

to M. Mehling is in the idea that no single jurisdiction has solution for such a wicked problem

as climate change is that is why comparison of different legal systems is crucial201.

While E. Morgera claims for interdisciplinarity of comparative law research202, M. Mehling

warns researchers from doing so. M. Mehling believes that lawyers can be confused by

sophisticated quantitative and qualitative methodology of other disciplines, which will

negatively affect the results, that is why it is better for them to focus on their own analysis

to extract the official will of society expressed in the documents203.

To wrap up this Section, I come to following considerations. This Chapter will continue with

comparison of Russian and Canadian legislation on IAS problem in narrow legal

methodology not crossing the boarders of analysis of official laws and policy documents

194 Ibid, p. 256. 195 Ibid, p. 258, 262. 196 Ibid, p. 258. 197 Mehling Review of European, Comparative and International Environmental Law. 2015, p. 344. 198 Ibid, p. 344. 199 Ibid, p. 344. 200 Ibid, p. 341. 201 Ibid, p. 346, 347. 202 Morgera Review of European, Comparative and International Environmental Law. 2015, p. 262. 203 Mehling Review of European, Comparative and International Environmental Law. 2015, p. 348.

63

within the states to extract existing collective will of the comparing societies in their coping

with the problem. However, the final Chapter of the master’s thesis devoting to an

assessment of adequacy of existing legal frameworks, conclusions and recommendations

will move forward and connect the conclusions of this Chapter with relevant provisions of

international law in its broader sense.

5.3 Comparison of federal (national) legal frameworks on invasive alien species in

Russia and Canada

As previous chapters of the master’s thesis have shown both Canada and Russia, have

federal, regional and the Arctic-specific legislation relevant to the problem of the protection

of the Arctic biodiversity from IAS. Table 1 provides a brief overview of federal frameworks

in Russia and Canada towards the IAS problem204.

Russia Canada

Sources

General federal

law on IAS

- -

Federal policy

documents on

IAS

• Fundamentals of state policy in the

field of environmental

development of the Russian

Federation for the period until

2030;

• Action Plan for the

implementation of the

Fundamentals of state policy in the

field of environmental

development of the Russian

Federation for the period until

2030;

• Strategy for the conservation of

plants and endangered species of

animals, plants and mushrooms;

• Comprehensive system of

statistical indicators on

• Canadian biodiversity strategy;

• An invasive alien species

strategy for Canada;

• A Canadian Action Plan to

address the threat of aquatic

invasive alien species.

204 Full names of the acts and the sources of their official publications are in text of Chapters 3, 4 of the master’s

thesis.

64

environmental protection in the

Russian Federation;

• Regulation on the implementation

of pest risk analysis.

Sectoral federal

law relevant to

the IAS problem

• Federal law on the protection of

the environment;

• Federal law on the animal world;

• Federal law on hunting and on

conservation of hunting resources;

• Law on the state border;

• Federal law on quarantine of

species.

• Plant protection act;

• Canada shipping act;

• Health of animal act;

• Fisheries act.

Normative

documents of

federal

authorities for

the

implementation

of sectoral laws

on IAS

• Administrative regulation of the

Rosprirodnadzor on the priorities

of a state service for issuing

permits for the relocation of fauna

to new habitats;

• Order of the Ministry of

Agriculture of Russia on approval

of the list of quarantine objects.

• Aquatic invasive species

regulation.

Table 1. Federal (national) legal frameworks on IAS in Russia and Canada

The comparison of federal frameworks in Russia and Canada provides following conclusions

concerning their similarities:

1. Both countries to some extent concern the IAS problem at their federal level. Federal

level in Canada includes both strategies, plans and programs on IAS, on the one hand,

and quite detailed sectoral legislation on IAS, on the other hand. Russia does not

have a single federal law on IAS but the protection of biodiversity from IAS is

recognized as a priority in policy documents, e.g. in the Fundamentals of state policy

in the field of environmental development of the Russian Federation for the period

until 2030. The Russian federal legislation as such provides tools which applicable

for combating against IAS. They are the norms of legislation on the protection of the

environment, animal world, boarder control and quarantine of plants.

65

2. Both countries do not have comprehensive law on IAS. Comparing countries focus

on IAS problem in their policy documents including federal programs, plans and

strategies, sectoral legislation and acts of federal authorities established for the

implementation of sectoral legislation.

3. Canadian and Russian legislation and policy documents on IAS are fragmented using

different terminology such as “IAS”, “hazardous species”, “pests” and other. Thus,

Canadian Biodiversity Strategy 1995 uses term “harmful alien organisms”, while

other documents follow other terminology. Russian Fundamentals of state policy in

the field of environmental development of the Russian Federation for the period until

2030 uses term IAS (“инвазивные чужеродные виды”, “invasivnye chuzherodnye

vidy”), while other Russian documents name IAS for example as “quarantine

objects” (Order of the Ministry of Agriculture of Russia on approval of the List of

quarantine objects).

4. Both countries use list approach towards IAS. Thus, according to Canadian Fisheries

Act, the Governor in Council empowered to establish a list of aquatic invasive

species and regulations in order to control such species. The Governor in Council

also can establish in regulations ministerial authorization on including and excluding

species in/out of the list. Russian example of the list approach is the Order of the

Ministry of Agriculture of Russia on approval of the List of quarantine objects.

Notwithstanding, following differences are crucial:

1. Russia is more centralised federation than Canada and the Constitution of Russia

allows the federal centre to establish federal policy on the environmental issues,

while environmental legislation is in joint jurisdiction of Russia and its subjects. In

Canada, it is more problematic for federal centre to launch binding environmenta l

initiatives for the whole country because of strong power of provinces in

environmental matters.

2. Despite existing of federal acts on IAS in both countries, in Canada this problem is

addressed in more focusing concentrating way (for example, in the IAS strategy for

Canada), while in Russia federal attention towards the issue is more fragmented.

3. While both countries use list approach towards IAS at federal level, the principles of

establishing the lists are different. Thus, the annex to Canadian Aquatic Invasive

Species Regulations (AISR) includes a list of species subjects to prohibitions and

controls and a list of species subject to controls only in areas where they are not

66

native. Russian List of quarantine objects embeds 1) species which are absent on the

territory of the Russian Federation; 2) species of limited spread on the territory of the

Russian Federation; 3) non-quarantine harmful organisms.

.

5.4 Comparison of regional (sub-national) legal frameworks on invasive alien species

in Russia and Canada

The comparison of regional (sub-national) legal frameworks on IAS in Russia and Canada

(Table 2) points out sub-national entities to some extent focus on the IAS problem and use

variety of legal instruments towards it, which illustrates regional legal diversity concerning

the issue.

Russia Canada

Sources

IAS specific

legislation

- • Invasive Species Act, Ontario;

• Ontario’s Regulation.

Acts of

implementation of

federal policy on

IAS

• Action plan for the

implementation of the State

Policy in the fields of

environmental development of

the Russian Federation for the

period up to 2020, the Republic

of Buryatia.

Not found

Other regional

acts concerning

IAS

• Strategy for the conservation of

biodiversity in the Sakhalin

Region for the period up to

2025;

• State programme of the Altai

Territory on environmental

protection, reproduction,

rational use of natural resources,

development of forestry in the

Altai territory;

• Forest Plan of the Kemerovo

Region;

• Decree of the Governor of the

Sverdlovsk Region on the

approval of the scheme for the

• Fish and wildlife conservation

act, Ontario;

• Forestry act, Ontario;

• Pesticides act, Ontario;

• Provincial parks and

conservation reserves act,

Ontario.

67

allocation, use and protection of

hunting areas in the Sverdlovsk

Region.

Regional

incentives

concerning IAS

(not command and

control method)

• Decree of the Government of the

Ulyanovsk Region on holding

the annual regional contest for

the most beautiful village of the

Ulyanovsk Region among rural

settlements of the Ulyanovsk

Region.

Not found

International

cooperation of

regions

concerning IAS

• The Kabardino-Balkar

Republic’s Security Concept for

2013-2015.

• Lake Champlain basin rapid

response action plan for aquatic

invasive species, Quebec and the

US states Vermont and New

York.

Table 2. Regional (sub-national) legal frameworks on IAS in Russia and Canada

The main similarities of comparing levels of legal frameworks are:

1. Sub-national entities in Russia and Canada to some extent focus on IAS problem.

The range of their attention is wide from general regulation to concreate mechanisms

including sectoral approach (e.g., IAS in forestry sector).

2. Russian and Canadian regions use wide range of legal instruments towards the issue

including laws, regulations, strategies, plans, documents concerning internationa l

cooperation and others, which illustrates legal diversity concerning the issue.

While similarities show that IAS problem has features of universalism and draws attention

of different territories, further analysis leads to the conclusion that intensity of regulation of

Russian and Canadian regions concerning IAS is not the same.

1. Canadian province Ontario has comprehensive legal framework on IAS includ ing

the Invasive Species Act and the Regulations adopted for the implementation of this

act. This framework use list approach and establishes strict penalties for introduction

or other activities with prohibited or restricted species, which are in the list. Russian

subjects do not have such legal frameworks.

2. In Russia, significant number of subjects establish their acts on implementation of

the federal policy on environmental development. While federal policy concerns the

68

IAS problem, the acts of its implementation in the Russian regions also establish

appropriate provisions. Similar acts in Canada have not been found.

3. The other feature which characterise the regulation concerning IAS in the subjects of

the Russian Federation is the including of incentives but not the command-and-

control methods in regulation, for example absence of IAS on the territory as the

requirement for participation in competitions for the title of the best territory in the

region. Similar instruments have not been found in practice of Canadian provinces.

4. While both Russian and Canadian sub-national entities mention internationa l

cooperation as a tool to cope with IAS problem, Canadian province Quebec goes

further and participates in concreate mechanism of international cooperation towards

the problem with the US states Vermont and New York.

Thus, Canadian provinces Ontario and Quebec have quite sophisticated mechanisms towards

the issue including mechanisms of international cooperation and strict sanctions for breaches

the rules. On the other hand, Russian regional regulation reflects federal policy combining

with local specificity and can include incentives instead of command-and-control methods,

which does not exist in legal frameworks of Canadian provinces.

One can explain these differences, on the one hand, by the fact that policy in Ontario and

Quebec is more focusing on IAS problem than policy in other comparing regions and, on the

other hand, by existing more centralized federal system in Russia where subjects relies on

the federal legislator. This system anyway leaves room for regional regulation reflecting

local specificity and problems. The examples of such Russian regions as the Sakhalin Region

and the Ulyanovsk Region to name but a few illustrate an ability of Russian subjects to act

autonomously using original and unique tools for the regulation concerning the IAS problem.

5.5 Comparison of the Arctic-specific legislation relevant to the protection of

ecosystems from invasive alien species in Russia and Canada

Table 3 provides the comparison of the Arctic-specific legislation relevant to the protection

of ecosystems from IAS in Russia and Canada.

Russia Canada

Federal (national) level

69

Sources

IAS Arctic-

specific

legislation

- -

Arctic-specific

legislation

concerning IAS

problem

- -

Arctic-specific

legislation

which is

relevant for

further

development

concerning IAS

problem

• Fundamentals of the state policy

of the Russian Federation in the

Arctic for the period until 2020

and beyond;

• Strategy for the development of

the Arctic zone of the Russian

Federation and ensuring national

security for the period until 2020;

• State program of the Russian

Federation on socio-economic

development of the Arctic zone of

the Russian Federation;

• Regulation on the State

Commission for the Development

of the Arctic.

• Arctic waters pollution

prevention act;

• Arctic waters pollution

prevention regulation;

• Pan-Canadian framework on

clean growth and climate

change.

Regional (sub-national) level

Sources

IAS Arctic-

specific

legislation

- -

Arctic-specific

legislation

concerning IAS

problem

• Action Plan for the

Implementation of the

Fundamentals of State Policy in

the Field of Environmental

Development of the Russian

Federation in the Republic of

Sakha (Yakutia) for the Period to

2030;

• Forest Plan of the Republic of

Karelia;

-

70

• Forest Plan of the Krasnoyarsk

Territory.

Arctic-specific

legislation

which is

relevant for

further

development

concerning IAS

problem

• Law of the Arkhangelsk Region

on Specially Protected Natural

Territories in the Arkhangelsk

Region;

• Decree of the Government of St.

Petersburg on Providing Measures

in the Interests of Development of

the Arctic Zone of the Russian

Federation.

• Act to establish a process for

assessing the environmental and

socio-economic effects of

certain activities in Yukon;

• An Act to provide for an

integrated system of land and

water management in the

Mackenzie Valley, to establish

certain boards for that purpose

and to make consequential

amendments to other Acts;

• An Act respecting land use

planning and the assessment of

ecosystemic and socio-

economic impacts of projects in

the Nunavut Settlement Area

and making consequential

amendments to other Acts.

Table 3. The Arctic-specific legislation relevant to the protection of ecosystems from IAS in Russia

and Canada

Arctic zone is strictly outlined in administrative order in Russia, which does not exist in

Canada following geographical approach. Nevertheless, if one accepts the Arctic as the

territory located North of the Arctic Circle both approaches focus geographically on almost

the same latitude.

The table 3 draws following conclusions concerning the federal level of the Arctic-specific

legislation in comparing countries.

1. Russia and Canada are similar because both countries do not have the Arctic-specific

legislation, which focuses on IAS problem and creates solutions specific for the

region. Nonetheless, the Arctic-specific documents of the countries combining with

general provisions on IAS could be a base for further development concerning the

problem discussed.

71

2. The difference between the countries is in the fact that while Russia mentions

protection of the Arctic ecosystems in their policy documents on the development of

the Arctic zone, Canada has the Arctic-specific environmental legislation as the acts

concerning the Arctic waters pollution prevention and also connects the protection

of Artic biodiversity with climate change in their climate change policy documents.

The similarities of regional levels of the Arctic-specific legislation in Russia and Canada

relevant to IAS problem are in the facts that sub-national entities of Russia and Canada have

not established Arctic-specific legislation concerning IAS problem, while have provisions

which could be used for further development of legislation concerning IAS problem in the

Arctic.

The differences of regional levels of the Arctic-specific legislation in Russia and Canada

relevant to IAS problem are:

1. While Canadian Arctic territories do not have legislation to some degree concerning

IAS problem, some Russian regions including the Republic Sakha (Yakutia), the

Republic of Karelia and the Krasnoyarsk Territory establish such acts. It could be

explained partly by the fact that Federal policy documents concerning environmenta l

development have such provisions and the regions include the provisions in order to

implement federal acts. The other reason is the size of the territories of the regions

(e.g. the Republic Sakha (Yakutia) and the Krasnoyarsk Territory) which are only

partly are the Arctic territories.

2. While Artic regions of both countries have provisions, which could be used for

further development of legislation concerning IAS problem in the Arctic, the nature

of these acts are different: while acts of Canadian territories concerning

environmental impact assessment, Russian acts concerning the other issues.

3. Canadian territories Yukon, Northwest Territories and Nunavut which are located in

the Arctic have status which is different from other Canadian regions which are

provinces, while Arctic sub-national entities in Russia are equal in their status to

other regions of Russia (despite differences in titles).

Thus, according to the Table 3, both comparing countries have not established acts, which

are specifically focusing on the protection of the Arctic biodiversity from IAS. It is true for

both federal (national) and regional (sub-national) levels. Notwithstanding, some acts of the

72

Arctic regions in Russia concern IAS to some extent. Both Russia and Canada have the acts,

which extract the Artic from the other regions of the countries, highlight specificity of its

problems and fragility of the Arctic ecosystems. Combining with general provisions on IAS

these acts could be the basis for further legal development concerning IAS in the Arctic.

5.6 Conclusion

The chapter characterises the comparison in the following way:

1. The chapter conducts the comparison of Russian and Canadian legal frameworks on

biodiversity protection from IAS at federal (national) and regional (sub-nationa l)

levels as well as in respect of the Arctic-specific legislation. The comparison includes

searching for both similarities and differences at every level of regulation.

2. While Russia and Canada are the countries of different legal systems (civil law and

common law), it is not an obstacle for the comparison because the comparison in the

master’s thesis is microcomparison concerning exact problem which is to some

extent regulated in the legislation of both countries. Notwithstanding, the difference

of the role of the legislation and policy documents in the countries should be bared

in mind as well as the possible role of judicial activism in Canada concerning the

issue in future.

3. The comparison has shown that the IAS problem is in focus of the law of the both

countries.

4. Fragmentation is a general characteristic of the approach of the countries towards the

issue, while the intensity of the fragmentation differs.

5. Canada and Russia provide diversity of legal instruments towards the issue. On the

one hand, Canadian province Ontario established Invasive species act with detailed

lists of the species and strict sanctions for the breach of the law. On the other hand,

the Ulyanovsk Region in Russia incentivises territories of the Region to combat with

IAS by establishing an absence of IAS at the territories as a requirement for

participation in competition for the title of the best settlement in the Region.

6. Russia and Canada have not created comprehensive legal frameworks towards

protection of the Arctic biodiversity from IAS in light of climate change.

Nevertheless, both countries have legal instruments of general and the Arctic-specific

character which are possible to use as tools towards the problem.

7. The aim of the comparison was not to identify the superiority of one legal framework

towards the other but to understand better specificity of the frameworks in relation

73

to the IAS problem in the Arctic. Despite this characteristic, the results of the

comparison could be used for proposals to reform and for other modification of the

existing law.

8. The limitation of comparative analysis is partly in the fact that constructing the ideal

type of law concerning the biodiversity protection from IAS is not enough as a

respond to the problem. Evaluation of social, political, economic, cultural, religious,

and other factors is needed which is aside of the master’s thesis.

The next and final Chapter of the paper combines the results of the comparison with the

provisions of the international environmental law on the Arctic biodiversity protection from

IAS for final conclusions and recommendations.

74

CHAPTER 6. ASSESSMENT OF ADEQUACY OF EXISTING LEGAL

FRAMEWORKS, CONCLUSIONS AND RECOMMENDATIONS

BASED ON THE COMPARISON

6.1 Assessment of adequacy of existing legal frameworks and conclusions

According to the introductory part of master’s thesis, the main research question of the thesis

is: to what extent the current legal frameworks in Canada and Russia are adequate for

protecting the Arctic from IAS and how do they compare in terms of scope and approaches?

For answering the main research question the master’s thesis draws three sub-research

questions:

1. What are the general and Arctic-specific legal frameworks on biodiversity protection

from IAS in Russia and Canada?

2. How do Russian and Canadian legal frameworks on IAS compare in terms of scope

and approaches?

3. To what extent the current legal frameworks in Canada and Russia are adequate for

protecting the Arctic from IAS? How can these be strengthened?

While previous chapters answer sub-research questions 1 and 2, this chapter focuses on

answering question 3. Accordingly, the chapter consists of two sections where the first one

concerning the issues of adequacy and conclusions and the second one devoted to the

recommendations.

As the first chapter noted the main international umbrella framework of Canadian and

Russian commitments towards IAS is Article 8(h) of the CBD according to which the

countries shall as possible and as appropriate prevent the introduction of, control or eradicate

those IAS which threaten ecosystems, habitats, and species.

While one can accept different modes of the effectiveness of international environmenta l

regimes including legal effectiveness focusing on compliance, behavioural effectiveness

measuring changes in the behaviour of the actors the most important dimension is problem-

solving effectiveness205. This type of effectiveness points out how the implementation of

205 Bodansky 2010, p. 253.

75

norms under international environmental regime contributes to the solving the

environmental problem on which the regime is constructing206. In terms of problem-solving

effectiveness, the biodiversity regime is outlining as a laggard because the biodiversity loss

is significant and continuing to grow207. The development complementing with habitat loss

and the increasing threat of IAS are among the main drivers of biodiversity loss. In this

context, the protection of the Arctic ecosystems in light of climate change is crucial for the

biodiversity regime.

Nevertheless, according to the Arctic IAS Strategy and Action Plan established under the

Arctic Council, the issue with protecting of the Arctic biodiversity form IAS is unique

because the Arctic ecosystems is not suffering from IAS now at least to the same degree as

the ecosystems of the other regions208. That is why Arctic counties have an opportunity to

construct effective regime for prevention, early detection and rapid response, eradication,

and control of IAS209 which will protect Arctic ecosystems and contribute to umbrella CBD

obligation to protect habitats, species, and ecosystems from IAS.

The CBD, its COP decisions, other international instruments as the Arctic IAS Strategy and

Action Plan are crucial for strengthening the legal frameworks of the comparing Arctic

countries.

The doctrine of the international environmental law states that there is a shift from

constructing new substantive norms at international law to issues of implementation and

enforcement210. In this context, international instruments concerning Art. 8 (h) of the CBD

on biodiversity protection from IAS facilitates implementation of this norm.

D. Bodansky claims that implementation is a process of translation policies into action in

which national actions remain primary211. National actions include not only activities of

states but also of other actors including industries and NGOs212. Notwithstanding, the state-

206 Ibid, p. 256. 207 Ibid, p. 260. 208 Conservation of Arctic Flora and Fauna and Protection of the Arctic Marine Environment: Arctic Invasive

Alien Species Strategy and Action Plan, 2017 (15.04.2018). 209 Ibid. 210 Redgwell 2008, p. 945. 211 Bodansky 2010, p. 205. 212 Ibid, p. 211.

76

driven implementation remains useful simplification213. There is no one explanatory model

of implementation, but through such factors as calculation of self-interests, normative sense,

bureaucratic routine, a pressure of environmentalist groups international instruments affect

national level including its legislation214.

A domestic constitutional order is critical for the implementation215. Horizontal (legislative,

executive and judiciary) and vertical (between a federation and its subjects) division of

powers and other features of policy arrangements form specificity and modes of

implementation unique for every country.

C. Redgwell claims that international environmental instruments will not achieve the same

level of significance at the national level as for example international human rights

instruments216. Nevertheless, there is a room for optimism concerning the issue due to the

fact that national policy discourses, legal frameworks and judicial decision-making change

in that direction217.

While IAS are in the legislation of both countries the development of legislative means

towards the issue remains of primary importance for the states. Notwithstanding, courts

could act as facilitators in the shadows of statues218. This is especially important for Canada

as common law country. Canadian practice concerning their international environmenta l

commitments shows that it was domestic courts who first drew attention to the Canadian

actions under Kyoto Protocol due to claims of local environmental groups219.

Russian implementation of international environmental norms has its own specificity. Thus,

G. Hønneland and A.-K. Jørgensen believe that implementation failure in Russia usually

concerns difficulties in implementation rather than conscious choice not to implement its

environmental commitments220. They believe that for effective implementation of

213 Ibid, p. 211. 214 Ibid, p. 223. 215 Redgwell 2008, p. 925. 216 Ibid, p. 945. 217 Ibid, p. 945. 218 Adelman – Engel 2008, p. 1850. 219 Bodansky 2010, p. 217. 220 Hønneland – Jørgensen 2003, p. 174.

77

international instruments in Russia appreciation of specific of its political culture is crucial

while the role of regional and local levels should not be underestimated221.

The role of international instruments for the strengthening of national environmenta l

legislation is also in their guiding features, providing expert and scientific knowledge to

domestic policymakers222, highlighting the necessity to cooperate with other actors to

achieve results of environmental protection. Current trends of involving non-Arctic states in

activities under the Arctic Council are crucial for the protection of the Arctic223, thus, as it

was mentioned in previous chapters many Arctic problems roots in the regions outside the

Arctic. And through international cooperation states able to include in their domestic

legislation provisions which are relevant and effective for achieving desirable environmenta l

outcomes.

B.J. Preston in the research conducting on the adequacy of a legal framework on justice in

climate change issues draw the question on adequacy as the extent to which evaluat ing

legislation achieving climate change justice224. By analogue with this, the question on the

adequacy of existing Canadian and Russian legislation on the protection of the Arctic

biodiversity from IAS is following: to what extent Canadian and Russian legislation achieve

the goal of protection of the Arctic biodiversity from IAS.

Notwithstanding, while the problem, fortunately, does not exist as a significant one now but

could occur in the future as a result of climate change and increasing human activity in the

region, strict measurement of adequacy of existing legislation is problematic. But during the

identification and comparison of norms concerning the issue, the collective will of Canadian

and Russian societies for coping with the problem had been extracted. It allows to some

extent predict how effective the legislation could be and draw the recommendations for

improving its legal capacity for use as an effective tool in a social response to the emerging

problem.

221 Ibid, p. 182. 222 Redgwell 2008, p. 944. 223 Stokke 66 (4) International Journal. 2011, p. 836. 224 Preston 34 (1) Journal of Energy & Natural Resources Law 2016, p. 45.

78

The Arctic-specific legislation concerning IAS in comparing countries is quite premature

and underdeveloped, that is why general instruments of federal and regional legisla t ion

should be in use.

As one can see from the analysis, both Russia and Canada to some extent focus on the IAS

in their legislation and policy documents. The scope of the comparing documents is mainly

sectoral (marine IAS, quarantine species and so on) while comprehensive regulation also

exists (Ontario IAS Act). Approaches of the countries and their sub-national entities while

having some similarities (list approaches, regulation by policy documents) also differs. Thus,

while Ontario IAS Act contains concreate mechanisms with strict sanctions some Russian

regions prefer incentives (absence of IAS at the territory as a requirement for participat ion

in official competitions in the Ulyanovsk Region).

The comparing legislation is highly fragmented. In Canada, only Ontario has comprehens ive

legal framework concerning IAS while other provinces and territories and the Federation as

such reluctant in establishing the same regulation. Russia mentions IAS in its federa l

environmental development policy, some regions establish their own instruments concerning

the problem but both federal and regional instruments mainly lack concreate mechanisms.

The sectoral approach to the problem in both countries allows authorities and other actors

within sectors conduct activities to maintain the necessary level of ecosystem protection

from IAS, but sectoral fragmentation combining with differences in legal terminology and

regional covering lead to an absence of comprehensiveness towards the issue.

While fragmentation could lead to better specialization in regulation, in my opinion, for more

focusing on IAS problem in the Arctic both countries need not only to enhance existing

regulation but also to adopt comprehensive frameworks reflecting the specificity of the

Arctic region. This framework should contain concreate means of implementation of

principles of international instruments towards biodiversity protection from IAS includ ing

general principles (e.g. precautionary approach), principles of prevention (border control,

quarantine measures, exchange of information, capacity building), principles concerning the

introduction of IAS (both intentional and unintentional introduction), principles of

mitigation (eradication, containment and control). The next section will express more

concreate recommendations.

79

For wrapping up notes on the adequacy of existing legal frameworks, two issues need to be

mentioned: firstly, the broader social context of the existence of IAS regulation, and

secondly, federal structure of legislation in comparing countries.

D. Bodansky discussing the issues of legal effectiveness of international environmenta l

treaty regimes mentions that compliance is, in fact, poor indicator because total compliance

might just be a feature of unambitious regulation, while non-compliance could be not a sign

of the absence of positive effect but a characteristic of more ambitious regulation225. The

same, in my opinion, is appropriate for discussing of the adequacy of legal frameworks :

perfect legal framework and compliance under it does not actually mean that the legisla t ion

is effective in resolving the problem. While issues of legal framing as such is significant,

other factors are also crucial for the protection of the Arctic environment from IAS. Their

reflection in legislation could enhance the regulation.

One more issue to highlight for understanding the level of adequacy and potential of legal

frameworks in Canada and Russia is the role of federalism. D. Bodansky believes that federal

structure of a state is one more aspect to take into account in implementation matters

concerning the issues who is responsible for the implementation and how to implement

international environmental norms226. C. Redgwell claims that necessity to implement

international commitments not necessarily matches with the competence to legislate227. As

one can see from the previous chapters, this is especially true for Canada, where states have

strong jurisdiction over the issues concerning the environment and natural resources and it

is not that easy for the federal authorities to launch common norms of federal environmenta l

policy and regulation applicable for the whole country.

A. Kaswan believes that such complex challenge as climate change and adaptation to it

requires multiscale regulation228. She claims that while local level combines better

knowledge of local practice and specificity it cannot go alone and federal legislation and

control, in this case, is justified229. Nevertheless, in her opinion the priority of further

development should be not in searching for a better level of regulation by policymakers but

225 Bodansky 2010, p. 254. 226 Ibid, p. 210. 227 Redgwell 2008, p. 925. 228 Kaswan 2015, p. 188. 229 Ibid, p. 194.

80

in establishing cooperation, coordination, and mutual control of different levels of federal

regulation230.

These provisions correlate to the debate on static and dynamic models of federalism. The

static model represents so-called matching principle of federalism231. According to the

principle, effective regulation is possible if regulator totally internalizes the costs and

benefits of appropriate actions232. Thus, matching principle requires that the issues of climate

change are relevant for global international level, while the issues of groundwaters are for

local and state regulation233. D.E. Adelman and K.H. Engel believe that this princip le

represents orthodox economists view but environmental problems are multifaced in their

nature, have diverse contexts and that is why require a different model of regulation234. They

claim that matching principle is counterproductive because it increases risks freezing

policies in changing environmental conditions235.

In this context, more flexible, adaptive and dynamic model of federalism following

ecosystem approach is needed. D.E. Adelman and K.H. Engel believe that shift from the

static model representing the matching principle to the dynamic model would enhance

responsibility of authorities, innovations in policies, socioeconomic adaptability, and

resilience in light of unprecedented changes in the environment236.

R.L. Glicksman claims that there is no need to prove which level of regulation is better:

federal (national) or regional (state, sub-national)237. Otherwise, he justifies the existence of

the authority to establish environmental law and policy at both levels238. Among positive

effects of overlapping federal and regional environmental authorit ies are a multiplicity of

forums at which citizens and NGOs could find the official support in their actions towards

better protection of the environment239.

230 Ibid, p. 198. 231 Adelman – Engel 2008, p. 1800. 232 Ibid, p. 1798. 233 Ibid, p. 1798. 234 Ibid, p. 1798. 235 Ibid, p. 1799. 236 Ibid, p. 1849. 237 Glicksman 2006, p. 801. 238 Ibid, p. 801. 239 Ibid, p. 801.

81

Following these provisions on environmental federalism and considering previous chapters

of the master’s thesis one can see that both Canada and Russia distribute environmenta l

issues among federal (national) and regional (sub-national) levels allowing both levels to

regulate these issues. Notwithstanding, decentralized Canadian federalism and centralized

Russian model require different approaches in balancing regulation towards the protection

of the Arctic biodiversity from IAS.

The general conclusions on the adequacy of existing legal frameworks of Russia and Canada

for protection of the Arctic ecosystems from IAS are following:

1. The Arctic region does not suffer from IAS now at least not as the other regions do

but can suffer in future due to climate change. The establishing of the adequate legal

framework in combination with other instruments for prevention and resolving the

problem not only contribute to the protection of the region as such but also can

enhance the overall effectiveness of the CBD regime.

2. Due to the future character of the problem the measurement of adequacy of existing

legal framework is problematic.

3. Notwithstanding, existing legislation of comparing countries could be recognized as

fragmented, follows sectoral approach, covers different regions of the countries,

combines different approaches from detailed mechanisms and sanctions to flexibi lity

and incentives.

4. Development of the regulation should include both enhancing of existing

mechanisms and establishing of comprehensive frameworks considering the role of

international instruments in this process and necessity of dynamic development of

environmental federalism in both countries.

5. Development of the legislation should be embedded in overall awareness raising,

enhancing cooperation between different actors within countries, between Arctic

states and regions and with non-Arctic entities including non-Arctic trade partners,

enhancing the cooperative potential of federal structures. Further development

should be aimed at prevention, detection, and rapid response to the problem.

Next section provides recommendations for development of Russian and Canadian legal

frameworks.

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6.2 Recommendations based on the comparison

This section, firstly, outlines general recommendations relevant for both comparing

countries. Secondly, the section provides recommendations for improving Canadian

legislation. And finally, the master’s thesis describes recommendations for Russia.

Common recommendations are following:

1. Development of legislation should be incorporated in broader social changes towards

the issue including awareness raising and other factors. The Arctic IAS Strategy and

Action Plan notes three goals to achieve for better protection of the Arctic from IAS

which could be incorporated into the policy of the Arctic states. These goals are

awareness raising, improving knowledge capacity for decision-making including the

enhancing of the role of the science in the issues and appreciation of local knowledge,

and undertaking prevention, early detection, and rapid response initiatives240.

2. Enhancing and development of existing legislative mechanisms are needed.

According to the Arctic IAS Strategy and Action Plan identifying of pathways of

intentional and unintentional introduction of species and cooperation among Arctic

states and with other states and trading partners outside the Arctic is critical for

ecosystem protection241. Thus, identification of pathways of introduction and

enhancing cooperation are among those measures which would enhance existing

legal instruments.

3. According to the analysis conducted above, while legislation is fragmented the

enhancing of its positive effects including list approach, sectoral, and region-specif ic

regulation is a welcome development.

4. While the problem of protection of the Arctic ecosystems from IAS is a new problem,

which presumably will grow further measurement of the effectiveness of existing

instruments including Ontario and Quebec approaches, the Sakhalin and Ulyanovsk

Regions specificity is needed. This measurement would not only illustrate which

means are more effective for biodiversity protection from IAS but also highlight

which means are better to transplant into the Arctic regions of comparing countries.

5. The establishing of overarching comprehensive legislation should be a guiding line

of development of the legislation. The EU Regulation # 1143/2014 is one of the

240 Ibid, p. 6. 241 Conservation of Arctic Flora and Fauna and Protection of the Arctic Marine Environment: Arctic Invasive

Alien Species Strategy and Action Plan, 2017, p. 7.

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possible models for such a framework. It includes provisions concerning different

pathways of introduction of IAS both intentional and unintentional. The Regulat ion

embeds relevant principles such as precautionary principle, principles of eradication,

containment, and control. It is crucial that this documents also provides an example

of interlinkages between anti-IAS means and WTO obligations and other

international commitments, highlights necessity to avoid overlapping between

different norms concerning the issue. Such provisions of the Regulation # 1143/2014

as the necessity to take into consideration costs of implementation of actions, costs

of inaction, cost-effectiveness and socio-economic impacts also could be useful for

incorporation into new frameworks of Russia and Canada. Considering that both

comparing countries are federations the version of the list approach providing by the

EU Regulation is relevant. According to the Regulation, IAS are subdivided into two

groups: 1) IAS of the Union concern and 2) IAS of member states concern. Russian

and Canadian lists also could be subdivided into 1) IAS of the federal (nationa l)

concern, and 2) IAS of regional (sub-national) concern. The EU Regulation #

1143/2014 establishes that Union level requires monitoring system, centralized

information system, transparency, accountability and providing a scientific forum.

The same is relevant for constructing legislation on IAS of federal (national) concern

in Russia and Canada.

6. Arctic-specific legislation concerning IAS problem should be developed both at

federal (national) and regional (sub-national) levels. According to the literature

review on adaptive environmental federalism, such a development should not focus

on searching for the better level of regulation but on enhancing cooperative features

of federal systems considering constitutional arrangements in comparing countries.

7. In framing a new legislation establishment of the nexus of biodiversity protection

and climate change adaptation is critical. As literature review and analysis of

decisions of bodies under international climate and biodiversity regimes has shown

the searching for such a nexus, overcoming of negative features of fragmentation and

enhancing synergies will improve both resilience ecosystem towards the changing

climate and the protection of biodiversity.

Three main specific recommendation for each of comparing countries based on the literature

review and conducting analysis are following.

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Recommendations for Canada:

1. Enhancing federal (national) legislation would require attempts to establish federal

regulation in particular by using judiciary means of a common law country.

Notwithstanding, enhancing cooperation between provinces and territories for

establishing a wide network of regions connected to the Arctic is needed. Such

federal regulation and cooperation between Canadian regions would enlarge territory

protected from IAS following ecosystem approach.

2. Enhancing regional (sub-national) legislation would require the development of

existing legislation, assessment of possibility for transplanting successful legisla t ion

to other regions and territories.

3. Enhancing the Arctic-specific legislation would require establishing Arctic-specific

legislation at federal (to the extent possible due to constitutional arrangements) and

regional (sub-national) levels. Such legislation needs to incorporate relevant

provisions of international instruments, federal and regional general regulation on

the protection of ecosystems from IAS and reflect the specificity of the Canadian

Arctic.

Recommendations for Russia:

1. Constitutional possibility of establishing federal environmental policy and the fact

that environmental law is in a joint jurisdiction of the federation and the subjects

open an opportunity for establishing a comprehensive legal framework for

biodiversity protection from IAS. The suggestions of R.L. Glicksman concerning

the environmental federalism in other countries are relevant for the Russian

federative system242. The researcher believes that federal authorities could establish

nation’s minimum environmental goals while sub-nation entities would enshrine

their own ways to achieve them243.

2. Enhancing regional (sub-national) legislation would require the development of

implementation of federal policy at regional level and development of regional

legislation on biodiversity protection from IAS.

3. Enhancing the Arctic-specific legislation would require establishing Arctic-specific

federal legislation, establishing and development of existing regional (sub-nationa l)

legislation relevant to the protection of the Arctic biodiversity from IAS. Such

242 Glicksman 2006, p. 801. 243 Ibid.

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legislation needs to incorporate relevant provisions of international instruments,

federal and regional general regulation on the protection of ecosystems from IAS

and reflect the specificity of the Russian Arctic.