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The EU and Environmental Multilateralism: The Case of Access and Benefit-Sharing and the Need for a Good-Faith Test

Published online by Cambridge University Press:  27 October 2017

Abstract

This chapter discusses the need for a good-faith test for assessing the legitimacy of ongoing and future EU initiatives aimed at contributing to the development and implementation of international environmental law. A test that is based on the international legal principle of good faith may serve to better understand when the EU is effectively supporting environmental multilateralism to the benefit of the international community, rather than seeking to unduly influence it purely for its own advantage. The test is developed mostly on the basis of EU efforts of contributing to climate change multilateralism, and is applied to a much less studied case: the adoption and implementation of the Nagoya Protocol on Access to Genetic Resources and Benefit-sharing under the Convention on Biological Diversity.

Type
Research Article
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2014

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References

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8 As opposed to measures with an extraterritorial ‘effect’: see distinction drawn by AG Kokott with regards to EU internal measure that do not embody a concrete rule of conduct for subjects beyond the territory of the EU, but still create an indirect incentive for them: Opinion, C-366/10 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, 6 October 2011, paras 145–47.

9 Marín Durán and Morgera (n 3 above) ch 7.

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17 In other words, these efforts can be characterised by their ‘global reach’ (that is, being ‘present across and between a range of [legal] sites and purport[ing] to cover all actors and activities relevant to its remit across the globe’) and their ‘global justification’ (‘an endorsement or commitment to a shared purpose or common political morality that may be explicitly invoked or implied’): N Walker, The Intimations of Global Law (forthcoming 2014), at 18. This idea is to some extent touched upon by Kokott (n 8 above) para 154.

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20 The need to resort to the notion of good faith in this connection was first underscored in Morgera and Kulovesi (n 10 above).

21 See similar comments in a more general context by Villalpando, S, ‘The Legal Dimension of the International Community: How Community Interests are Protected in International Law’ (2010) 21 European Journal of International Law 387, at 415 and 418–19CrossRefGoogle Scholar.

22 Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79.

23 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010) UN Doc UNEP/CBD/COP/10/27, in force 12 October 2014.

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25 European Commission, ‘Communication on external action: thematic programme for environment and sustainable management of natural resources including energy’ COM(2006) 20 final, 24.

26 Eg, N Fujiwara, ‘Reinvigorating the EU’s Role in the post-Copenhagen Landscape’ (2010) Climate Change, CEPS Commentaries, at: www.ceps.be/book/reinvigorating-eu%E2%80%99srole-post-copenhagen-landscape; Curtin, J, The Copenhagen Conference: How Should the EU Respond? (Dublin, IIEA, 2010)Google Scholar.

27 While these agreements have different denominations and objectives, their environmental clauses are notably similar: for a discussion, Marín Durán and Morgera (n 3 above) 57–63.

28 As their negotiations were launched by the Commission, ‘Communication—Global Europe: Competing in the world: A contribution to the EU’s Growth and Jobs Strategy ‘, COM(2006) 567 final of 4 October 2006. See Marín Durán and Morgera (n 3 above) 133–42, and for an insider’s perspective, R Zvelc, ‘Environmental integration in the EU trade policy: the examples of the GSP+, trade sustainability impact assessments and free trade agreements’ in Morgera (n 2 above) 174.

29 See Marín Durán and Morgera (n 3 above) 140.

30 Ibid, ch 6.

31 Ibid, ch 3. This is the ‘Special Incentive Arrangement for Sustainable Development and Good Governance’ in Regulation (EU) 978/2012 of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008, [2012] OJ L303/1, Arts 9–16 and Annex VIII. Note that Article 9(1)(b) makes reference to the condition that ‘the most recent available conclusions of the monitoring bodies under those conventions … do not identify a serious failure to effectively implement any of those conventions.’

32 For a discussion, see Marín Durán and Morgera (n 3 above) ch 4 and G Marín Durán, ‘Environmental Integration in EU Development Cooperation: Responding to International Commitments or Its Own Policy Priorities?’ in Morgera (n 2 above) 204.

33 Commission, ‘Environment and natural resources thematic programme—2011–2013 strategy paper and multiannual indicative programme ‘, 29 October 2010, at 25.

34 Marín Durán and Morgera (n 3 above) ch 5.

35 Ibid, 249.

36 Ibid, 231.

37 See references in n 32 above, and in particular Marín Durán and Morgera (n 3 above) 176.

38 Vedder (n 3 above) 105.

39 Kulovesi, Morgera and Munoz (n 10 above).

40 Scott (n 10 above) 28 and 32.

41 Marín Durán and Morgera (n 3 above) ch 7.

42 See references in n 13.

43 Scott and Rajamani (n 13 above); Marín Durán (n 32 above).

44 Kulovesi (n 14 above).

45 Scott and Rajamani (n 13 above) 469.

46 Marín Durán (n 32 above) 224–40.

47 On these concerns, D Augenstein, ‘The Human Rights Dimension of Environmental Protection in EU External Relations Post-Lisbon’ in Morgera (n 2 above) 263. On limited practice specifically related to environmental rights, see Morgera, E, ‘The Promotion of Environmental Rights through EU Bilateral Agreements: Mapping the Field’ in Lenzerini, F and Vrdoljak, A (eds), International Law for Common Goods (Oxford, Hart Publishing, 2014) 421 Google Scholar.

48 Scott and Rajamani (n 13 above); Morgera (n 7 above).

49 Honkonen, T, ‘The Principle of Common but Differentiated Responsibility in Post-2012 Climate Negotiations’ (2009) 18 RECIEL 257, at 259Google Scholar.

50 United Nations Framework Convention on Climate Change, 4 June 1992, 1771 UNTS 107 (UNFCCC), Art 3.

51 There are various examples in MEAs of differentiated responsibilities: the most notable is the Kyoto Protocol, which provides for quantified and time-bound obligations to mitigate climate change only for so-called ‘Annex-I countries’, ie developed countries.

52 Morgera (n 11 above) 759.

53 This is a common obligation across MEAs, although it is most clearly expressed in CBD Art 20(4).

54 Morgera (n 2 above), and for a specific reply to the concerns raised by Scott and Rajamani (n 13 above) and Kulovesi (n 14 above).

55 AG Kokott, Opinion, C-366/10 Air Transport Association of America and Others, 6 October 2011, paras 185–86, noted that the EU ‘could not reasonably be required to give … [multilateral] bodies unlimited time in which to develop a multilateral solution’. The salience of the timing of unilateral measures is discussed by Jansen, B, ‘The Limits of Unilateralism from a European Perspective’ (2000) 11 European Journal of International Law 309, at 313CrossRefGoogle Scholar; and Boisson de Chazournes, L, ‘Unilateralism and Environmental Protection: Issues of Perception and Reality of Issues’ (2000) 11 European Journal of International Law 315, at 332CrossRefGoogle Scholar; and Bodansky, D, ‘What’s so Bad about Unilateral Action to Protect the Environment?’ (2000) 11 European Journal of International Law 339, at 347CrossRefGoogle Scholar.

56 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (24 October 1970) UN Doc A/RES/25/2625 and VCLT Arts 26 and 31. For an overview, see generally Kotzur, M, ‘Good Faith’ in Wolfrum, R (ed), Max Planck Encyclopedia of International Law (Oxford, Oxford University Press, 2012, online edition)Google Scholar.

57 Ibid, para 4.

58 Virally, M, ‘Review Essay: Good Faith in Public International Law’ (1983) 77 American Journal of International Law 130 Google Scholar.

59 Litvinoff, S, ‘Good Faith’ (1997) 71 Tulane Law Review 1645, 1664Google Scholar.

60 Kotzur (n 56 above) para 26.

61 Simma, B, ‘From Bilateralism to Community Interests in International Law’ (1994) IV (250) Recueil des Cours 217, 319Google Scholar.

62 ICJ, Gulf of Maine case, [1984] ICJ Rep 246, para 87.

63 Pavoni, R, ‘Mutual Supportiveness as a Principle of Interpretation and Law-Making: A Watershed for the WTO-and-Competing-Regimes Debate?’ (2010) 21 European Journal of International Law 649, particularly 661–69CrossRefGoogle Scholar.

64 Villiger, M, ‘1969 Vienna Convention on the Law of Treaties: Forty Years After’ (2009) 344 Recueil Des Cours 1, 1116–17Google Scholar.

65 This was first put forward in Morgera (n 7 above). Joanne Scott appears to think along the same lines in her recent piece on EU territorial extension (n 16 above), when she refers to the need to ‘pursuing internationally agreed objectives rather than its own autonomous objectives (“promoting fidelity to international law”)’.

66 Jonas, D and Saunders, T, ‘The Object and Purpose of a Treaty: Three Interpretative Methods’ (2010) 43 Vanderbilt Journal of Transnational Law 565 Google Scholar.

67 In that regard, note that Principle 12 of the Rio Declaration on Environment and Development (1992) UN Doc A/CONF.151/26, vol 1, Annex 1) reads: ‘…Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on international consensus ‘ (emphasis added).

68 Commission, ‘Forest Law Enforcement, Governance and Trade (FLEGT): Proposal for an Action Plan’ COM(2003) 251 final, 3; endorsed by the Council, ‘Conclusions—Forest Law Enforcement, Governance and Trade (FLEGT)’ [2003] OJ C268/1 (‘FLEGT Action Plan’).

69 Ibid, at 5; World Summit on Sustainable Development Plan of Implementation, (2002) UN Doc A/CONF.199/20, Resolution 2, para 45(c).

70 Namely, timber species listed under Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 UNTS 243: FLEGT Action Plan, 20, 9 and 11.

71 The idea of responsiveness was first put forward in Morgera (n 7 above) 207–8.

72 Morgera (n 2 above).

73 Scott (n 16 above) 116. See n 8 for an explanation of ‘extraterritorial implications’.

74 See, for example, Arts 10b(1) and 11a of Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, amending Directive 2003/87/EC, so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (‘EU ETS Directive’), [2009] OJ L140/63, and Arts 5.2, 5.3, 8 and 9 of Decision No 406/2009/ EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020, [2009] OJ L140/136.

75 REDD-plus means ‘reducing emissions from deforestation and forest degradation, conservation of forest-carbon stocks, sustainable management of forests, and enhancement of forest-carbon stocks’. For a discussion, see H van Asselt, ‘Managing the Fragmentation of International Environmental Law: Forests at the Intersection of the Climate and Biodiversity Regime’ (2014) NYU Journal of International Law and Politics; Savaresi, A, ‘Reducing Emissions from Deforestation in Developing Countries under the UNFCCC. Caveats and Opportunities for Biodiversity’ (2011) 21 Yearbook of International Environmental Law 41 CrossRefGoogle Scholar.

76 Cancun Agreements, Decision adopted by the Conference of the Parties to the UN Framework Convention on Climate Change on its sixteenth session (2011) UN Doc FCCC/CP/2010/7/Add.1, 70–73.

77 Commission, ‘Proposal laying down the obligations of operators who place timber and timber products on the market’, COM(2008) 644/3 final, 5; and Agreement establishing an Association between the EU and its Member States, on the one hand, and Central America on the other, [2012] OJ L346/3, Art 20; Free Trade Agreement between the EU and its Member States, on one side, and Colombia and Peru, on the other side, [2012] OJ L354/3, Art 286; Second Revision of the Cotonou Partnership Agreement—Agreed Consolidated Text (11 March 2010), Art 32 bis.

78 For a more detailed discussion, see A Savaresi, ‘FLEGT and REDD: Interactions between EU Bilateral Cooperation and the Development of International Law’ in Morgera (n 2 above) 149.

79 This relates to the international debate on the so-called ‘safeguards’ for REDDplus concerning biodiversity and forest-dependent communities. See Environmental Council Conclusions of 20 December 2010 on the Nagoya Conference of the Parties to the CBD, where Member States and the Commission are invited to ‘actively contribute to the preparation of advice on the application of relevant safeguards for biodiversity in relation to REDD+, in line with the CBD COP 10 decision, and facilitate the development and implementation of such safeguards under REDD+’. This was reflected in the EU-Africa partnership: Third EU-Africa Summit, ‘Joint Africa-EU Strategy Action Plan (2011–2013)’ Tripoli, 30 November 2010.

80 Stopping the clock of ETS and aviation emissions following last week’s International Civil Aviation Organisation (ICAO) Council, MEMO/12/854, 12 November 2012.

81 Morgera (n 11 above) 765–66; and Scott (n 16 above) 117–18.

82 Dupuy, P-M, ‘The Place and Role of Unilateralism in Contemporary International Law’ (2000) 11 European Journal of International Law 19, 22–23CrossRefGoogle Scholar.

83 EU ETS Directive, Arts 10(3) and 25.

84 Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006, [2009] OJ L140/114, preambular para 7.

85 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (‘Renewables Directive’), [2009] OJ L140/16, Art 9(1).

86 In relation to the biofuels sustainability criteria: Renewables Directive, Arts 18(4) and 23(2).

87 Morgera (n 7 above).

88 Recitals 3–4, EU-Ghana VPA, [2010] OJ L70/3 point to the multilateral instruments of reference.

89 Morgera (n 2 above), building on Simma (n 61 above) 319.

90 See www.fao.org/forestry/acp-flegt/en. Note that while there is no formal link between the FAO FLEGT Programme and the VPAs, FAO assistance specifically targets countries depending on ‘their level of interest in the FLEGT Action Plan and in negotiating a VPA’ through support for national and regional FLEGT/VPA workshops to share information, knowledge and lessons learnt, feasibility studies on VPA-related issues; and support for national multi-stakeholder committees in charge of VPA negotiations and for the participation of local stakeholders: FAO, Improving Forest Governance in Africa, the Caribbean and the Pacific (FAO, undated) 6 and 9, at: foris.fao.org/static/data/acpflegt/4087Forestgovernance_en.pdf.

91 See FAO Legal Office, ‘Legal Advisory Services: Forestry and Wildlife’, at: www.fao.org/legal/advserv/forest-e.htm.

92 Arts 7 and 11 TFEU. Climate change mainstreaming has become an explicit Treaty requirement, based on a combined reading of Article 11 TFEU and Article 191(1), where climate change is for the first time explicitly mentioned as a result of the amendment introduced by the Lisbon Treaty.

93 Article 21(2)(b) read in conjunction with Article 21(2)(d) and (f) TEU. For a discussion of coherence in the EU’s external relations and environmental integration, see M Cremona, ‘Coherence and EU External Environmental Policy’ in Morgera (n 2 above) 33.

94 Morgera (n 7 above) 207.

95 Directive 2009/28/EC of 23 April 2009 on the promotion of the use of energy from renewable sources, [2009] OJ L 140/16, Art 17(3). For a discussion, see Kulovesi, Morgera and Muñoz (n 10 above) 877–82.

96 Morgera (n 47 above) 435–38.

97 In addition to the CBD, it is also party to the: Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, 1651 UNTS 333; International Treaty on Plant Genetic Resources for Food and Agriculture, 3 November 2001, 2400 UNTS 303; Cartagena Protocol on Biosafety, 29 January 2000, 2226 UNTS 208.

98 Other key biodiversity agreements to which the EU is not a party are the Convention on Wetlands of International Importance, 2 February 1971, 996 UNTS 245; and the Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 UNTS 151.

99 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 UNTS 243.

100 CITES, ‘Gaborone Amendment’: www.cites.org/eng/disc/gaborone.shtml.

101 Regulation (EC) No 338/97, [1997] OJ L61/1.

102 Bowman, M, Davies, P and Redgwell, C, Lyster’s International Wildlife Law, 2nd edn (Cambridge, Cambridge University Press, 2010)CrossRefGoogle Scholar.

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104 In mid-2010, official scientific evidence was released, stating that the global target for reducing the rate of biodiversity loss had not been met: CBD and UNEP-World Conservation Monitoring Centre, Global Biodiversity Outlook-3 (Montreal, Secretariat of the CBD, 2010).

105 Ibid, 75 and 83.

106 Sadeleer, N, ‘EC Law and Biodiversity’ in Macrory, R (ed), Reflections on 30 Years of EU Environmental Law—a High Level Protection? (Groningen, Europa Law Publishing, 2005) 351, 368–69Google Scholar.

107 Notably, the Birds and Habitats Directives: Directive 2009/147/EC on the conservation of wild birds, [2010] OJ L20/7 (codified version) and Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, [1992] OJ L206/7.

108 Holder, J and Lee, M, Environmental Protection, Law and Policy (Cambridge, Cambridge University Press, 2007) 627 CrossRefGoogle Scholar.

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110 Kramer (n 1 above) 196; and European Parliament, Resolution on the implementation of EU legislation aiming at the conservation of biodiversity (2009/2108(INI)), 21 September 2010.

111 Commission, ‘Communication—Our Life Insurance, Our Natural Capital: An EU Biodiversity Strategy to 2020’ COM(2011) 244, 6–7 (‘2020 Biodiversity Strategy’); and endorsement by Council, ‘Conclusions—EU Biodiversity Strategy to 2020’, 23 June 2011.

112 The EU 2020 headline target reads: ‘halting the loss of biodiversity and the degradation of ecosystem services in the EU by 2020, and restoring them in so far as feasible, while stepping up the EU contribution to averting global biodiversity loss’ (COM(2011) 244 (n 111 above), 2).

113 For comprehensive analysis, see Kulovesi, Morgera and Muñoz (n 10 above).

114 Eg, UNFCCC, Views related to carbon dioxide capture and storage in geological formations as a possible mitigation technology, Submission from Parties (2010) UN Doc FCCC/SBSTA/2010/MISC.2, 32–42.

115 E Morgera, ‘The Trajectory of EU Biodiversity Cooperation: Supporting Environmental Multilateralism through EU External Action’ in Morgera (n 2 above) 235.

116 K Kulovesi, ‘Climate Change in EU External Relations: Please Follow My Example (or I Might Force You to)’ in Morgera (n 2 above) 115.

117 Eg Free Trade Agreement between the EU and its Member States, of the first part, and Colombia and Peru, of the other, [2012] OJ L354/3 (COPE FTA), Art 63; Free Trade Agreement between the European Union and its Member States, of the first part, and the Republic of Korea, of the other part, [2011] OJ L127/4 (South Korea FTA), Art 13.5(3).

118 Which feature the same, detailed article on cooperation on the conservation of biodiversity, protected areas and the sustainable use and management of biological resources: eg, Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Armenia, of the other part, [1999] OJ L239/3, Art 55(2).

119 COPE FTA, Art 267(2)(b) and 270(2); South Korea FTA, Art 13.11.

120 Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other [2008] OJ L289/3 (EU-CARIFORUM EPA), Art 150(1); (COPE FTA), Art 272.

121 CBD Article 8(j) reads: ‘Each Contracting Party shall, as far as possible and as appropriate: … Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices’.

122 Art 21(b) and (d) TEU.

123 For a discussion of the Nagoya Protocol from an EU perspective, see Buck, M and Hamilton, C, ‘The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biological Diversity’ (2011) 20 RECIEL 47 Google Scholar.

124 Savaresi, A, ‘The International Human Rights Law Implications of the Nagoya Protocol’ in Morgera, E, Buck, M and Tsioumani, E (eds), The 2010 Nagoya Protocol on Access and Benefit-sharing in Perspective: Implications for International Law and Implementation Challenges (Leiden/Boston MA, Martinus Nijhoff, 2013) 53 Google Scholar; and Morgera, E, Tsioumani, E and Buck, M, Unraveling the Nagoya Protocol: A Commentary on the 2010 Protocol on Access and Benefit-sharing to the Convention on Biological Diversity (Leiden/Boston MA, Brill Nijhoff, 2014)CrossRefGoogle Scholar.

125 18th Japan-EU Summit, ‘Joint Press Statement’ (9454/09 (Presse 113) 2009) para 15.

126 See: www.gcca.eu. For a discussion, Marín Durán and Morgera (n 3 above) 229.

127 Commission, ‘Impact Assessment Accompanying the Communication—Our Life Insurance, Our Natural Capital: an EU Biodiversity Strategy to 2020’, SEC(2011) 540, 16.

128 Commission, ‘Environment and Natural Resources Thematic Programme—2011–2013 Strategy Paper and Multiannual Indicative Programme’ (ENRTP Strategy 2011–13), 29 October 2010, 9 and 13.

129 ENRTP Strategy 2011–2013, 7, 17 and 23.

130 Morgera, Tsioumani and Buck (n 124 above) on Article 1, 48–52.

131 Although note the possibility for a multilateral benefit-sharing mechanism to be established under Nagoya Protocol, Article 10: see Morgera, Tsioumani and Buck (n 124 above) 197–208.

132 Francesco, Francioni, Genetic Resources, Biotechnology and Human Rights: The International Legal Framework, Working Paper (Florence, European University Institute, 2006): cadmus.eui.eu/handle/1814/6070, at 20–21 Google Scholar.

133 Morgera, Tsioumani and Buck (n 124 above), 382–84.

134 Nagoya Protocol, Arts 6(2) and 7. Morgera, Tsioumani and Buck (n 124 above) 145–56 and 170–77.

135 Nagoya Protocol, Art 5(1)–(2) and (5). Morgera, Tsioumani and Buck (n 124 above) 117–30.

136 Nagoya Protocol, Art 12. Morgera, Tsioumani and Buck (n 124 above) 216–28.

137 Nagoya Protocol, Arts 21–22. Morgera, Tsioumani and Buck (n 124 above) 301–13.

138 See the review of implementation challenges in different regions in Part II of Morgera, Buck and Tsioumani (n 124 above).

139 Nagoya Protocol, Arts 15 and 16. Morgera, Tsioumani and Buck (n 124 above) 249–70.

140 T Young, ‘An international cooperation perspective on the Implementation of the Nagoya Protocol’ in Morgera, Buck and Tsioumani (n 124 above) 451.

141 Nagoya Protocol, Art 14. Morgera, Tsioumani and Buck (n 124 above) 237–48.

142 Nagoya Protocol, Art 17(3)–(4). Morgera, Tsioumani and Buck (n 124 above) 279–82.

143 Nagoya Protocol Art 30. Morgera, Tsioumani and Buck (n 124 above) 346–62.

144 Although CBD developed-country parties have mostly characterised themselves as user countries and developing ones as provider countries, ‘[p]arties that are countries of origin of genetic resources may be both users and providers and that parties that have acquired these genetic resources in accordance with the Convention on Biological Diversity may also be both users and providers’ (CBD Decision VII/19 D, Recital 16).

145 Vermeylen, S, ‘The Nagoya Protocol and Customary Law: The Paradox of Narratives in the Law’ (2013) 9 Law Environment and Development Journal 185 Google Scholar.

146 See generally Young (n 140 above).

147 Morgera, Tsioumani and Buck (n 124 above) 377–81.

148 Morgera, Tsioumani and Buck (n 124 above) 110–35.

149 Nagoya Protocol, Arts 6–7.

150 Nagoya Protocol, Arts 15–16.

151 Note that the EU argued in the negotiations of the Protocol that ‘access’ should have been included on an equal footing with ‘benefit-sharing’ in the objective of the Protocol: EU proposal to this end in Report of the first part of the ninth meeting of the CBD Working Group on Access and Benefit-sharing, (2010) UN Doc UNEP/CBD/WG-ABS/9/3, p 19.

152 Nagoya Protocol, Arts 23 and 25. Morgera, Tsioumani and Buck (n 124 above) 314–21 and 325–32.

153 Ibid, Art 22.

154 Ibid, Arts 15–16. Morgera, Tsioumani and Buck (n 124 above), 249–70.

155 ICJ, Case concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14, para 197 (‘Pulp Mills case’); ITLOS, Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), Advisory Opinion (1 February 2011), [2011] ITLOS Rep 10, paras 115–16 (‘Sea Bed Advisory Opinion’).

156 This is particularly the case of the obligation to establish ‘effective’ checkpoints: Nagoya Protocol, Art 17(1)–(2); and Morgera, Tsioumani and Buck (n 124 above), 274–78.

157 Nagoya Protocol, Arts 15(3) and 16(3).

158 Morgera (n 2 above).

159 Several issues under the Nagoya Protocol have not yet been fully resolved and in some cases the Protocol itself calls for further multilateral negotiations: for example, the determination of the need for and modalities of a global multilateral benefit-sharing mechanism (Art 10) and the establishment of the compliance procedures and mechanisms (Art 30).

160 This is due to the non-participation of the US: see Oberthür, S and Rabitz, F, ‘The Role of the European Union in the Nagoya Protocol Negotiations: Self-interested Bridge Building’ in Oberthür, S and Rosendal, K (eds), Global Governance of Genetic Resources: Access and Benefit Sharing After the Nagoya Protocol (London, Routledge, 2013) 79 Google Scholar.

161 European Commission, Proposal for a Regulation of the European Parliament and of the Council on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union, COM(2012) 576 (‘Commission proposal’).

162 Oberthür and F Rabitz (n 160 above), 90–91.

163 Amendments adopted by the European Parliament on 12 December 2013 on the proposal for a regulation of the European Parliament and of the Council on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union (‘European Parliament amendments’).

164 Natural Justice and Berne Declaration, ‘Access or Utilization—What Triggers User Obligations? A Comment on the Draft Proposal of the European Commission on the Implementation of the Nagoya Protocol on Access and Benefit-sharing’ (2013): http://naturaljustice.org/wp-content/uploads/pdf/Submission-EU-ABS-Regulation.pdf; and United Nations University (UNU), Natural Justice and Berne Declaration, ‘The Ambiguous March to Equity: A Commentary on the Limitations of the European Union Regulation on Access and Benefit-sharing’ (2014): www.evb.ch/fileadmin/files/documents/Biodiversitaet/KORR_The_Ambiguous_March_to_Equity.pdf.

165 Regulation (EU) No 511/2014 of the European Parliament and the Council of 16 April 2014 on compliance measures for users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization in the Union, [2014] OJ L150/59—(‘Final Regulation’)—which entered into force on 9 June 2014 and applies after the Nagoya Protocol itself entered into force.

166 Oberthur and Rabitz (n 160 above) 84–85.

167 Ibid, 79.

168 Ibid, 80.

169 Ibid.

170 Ibid, 84.

171 2020 Biodiversity Strategy (n 111 above), 7.

172 Burton, G and Evans-Illidge, E, ‘Emerging R & D Law: The Nagoya Protocol and Its Implications for Researchers’ (2014) 9 ACS Chemical Biology 588, 589CrossRefGoogle ScholarPubMed.

173 Commission proposal, draft preambular paras 8, 28. Compare with European Parliament amendment 35; and final text of the Regulation, preambular para 35.

174 Morgera, Tsioumani and Buck (n 124 above) 49–52.

175 MAT are instead referred to in the operative provision on benefit-sharing of the Nagoya Protocol: Article 5. For a discussion on the role of MAT in the Nagoya Protocol, see Morgera, Tsioumani and Buck (n 124 above) 131–32.

176 Nagoya Protocol, Art 1.

177 But an omission that was promptly underlined by the European Parliament amendment 24, and has been remedied in the Final Regulation preambular paras 9, 22 and 32 and Art 1.

178 Morgera, Tsioumani and Buck (n 124 above) 376.

179 See also European Parliament amendments 8 and 14–15.

180 Final Regulation, preambular paras 32 and 35.

181 Final Regulation, preambular paras 7, 32 and 35, and Art 1.

182 Final Regulation, preambular para 9.

183 Commission proposal, draft art 2 (and Final Regulation, Art 2). See European Parliament amendment 21.

184 Clarifications in this regard could be achieved in the context of negotiations on the Nagoya Protocol Art 10 (n 159 above). For a more in-depth discussion of open questions on the temporal scope of the Protocol, see Morgera, Tsioumani and Buck (n 124 above) 77–80.

185 UNU, Natural Justice and Berne Declaration (n 164 above), 6–7; and Natural Justice and Berne Declaration (n 164 above), 3 noting that the interpretation is debatable and relying on Koester, V, ‘The Nagoya Protocol on ABS: Ratification by the EU and its Member States and Implementation Challenges’ (Rskilde University, Study 3/12, 2012)Google Scholar.

186 UNU, Natural Justice and Berne Declaration (n 164 above), 8.

187 Commission proposal draft art 7. UNU, Natural Justice and Berne Declaration (n 164 above), 8.

188 Nagoya Protocol Art 2(c). See Morgera, Tsioumani and Buck (n 124 above) 274–76.

189 UNU, Natural Justice and Berne Declaration (n 164 above), 8 referring to Commission proposal, draft arts 4–6. See also European Parliament amendments 55 (proposing deletion of the draft provision on Union trusted collections), 60–61 and 63 (significantly strengthening the provision on checkpoints) and 62 (proposing deletion of the draft provision on users’ best practices).

190 Pulp Mills case, para 197; Sea Bed Advisory Opinion, paras 115–16.

191 Commission proposal, draft art 4(1).

192 The EU draft regulation would encourage users’ associations to seek recognition of a combination of procedures, tools or mechanisms (eg, on the deployment of data-sharing tools for tracking) developed for the purpose of implementing their obligations under the regulation as ‘best practice’, by subjecting users implementing such recognised best practice to less intense compliance checks (Commission proposal, draft Arts 8–9).

193 Commission proposal, draft preambular Recital 14 noted the need for ‘only minimum features of due diligence’ due to the diversity of users; the European Parliament proposed to delete this reference: amendment 14, which has disappeared from the Final Regulation.

194 Final Regulation, Arts 4–10.

195 Traditional knowledge is defined as that ‘held by indigenous and local communities that is relevant for the use of genetic resources and that is as such described in the mutually agreed terms applying to the use of genetic resources’: Commission proposal, draft art 3(8). See comments by UNU, Natural Justice and Berne Declaration, 10 and European Parliament amendment 8. The Final Regulation makes reference to the relevant provision of the CBD (preambular para 5), but otherwise retains the reference to MAT without any mention of relevant international human rights standards (preambular para 20 and Art 3(7)).

196 Morgera, Tsioumani and Buck (n 124 above) 24–30.

197 Commission proposal, draft art 16(3), which provided for a review every 10 years.

198 Which will be addressed on a periodic basis by the governing body of the Protocol: Nagoya Protocol Art 26, and comments by Morgera, Tsioumani and Buck (n 124 above) 333–36.

199 European Parliament amendment 31.

200 European Parliament amendment 76.

201 Final Regulation, Art 16(2).

202 Final Regulation, Art 16(3).

203 Vienna Convention on the Law of Treaties, Art 31(3)(b).

204 European Parliament amendment 66.

205 Commission proposal, preambular para 25; and Final Regulation, preambular para 31.

206 Commission proposal, draft art 12(1).

207 On the usefulness of bilateral approaches to support the implementation of the Nagoya Protocol, see Young (n 140) 496–98.

208 European Parliament amendment 73.

209 Nagoya Protocol Art 11; Morgera, Tsioumani and Buck (n 124 above) 209–15.

210 European Parliament amendment 73.

211 Final Regulation, Art 9(3)(b).

212 European Parliament amendment 66 and 75.

213 European Parliament amendment 68.

214 Final Regulation, Art 15.

215 ILO Convention No 169, Art 15(1); Inter-American Commission on Human Rights, Maya Indigenous Community of the Toledo District v Belize, Merits, Case No 12.053 (IACHR, 12 October 2004) 194–95; and, more generally, Inter-American Commission on Human Rights, ‘Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources. Norms and Jurisprudence of the Inter-American Human Rights System’ (2010) 35 American Indian Law Review 386 Google Scholar.

216 Follow-up report of the Special Rapporteur on the rights of indigenous peoples (2012) UN Doc A/HRC/21/47, paras 32–35; and Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya—Extractive industries and indigenous peoples (2013) UN Doc A/HRC/24/41, paras 26–40.

217 Ibid, para 55(a).

218 Ibid, para 55(j).

219 Ibid, para 37.

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