Download Polar Bears, Climate Change and International Law

Polar Bears, Climate Change and
International Law
Nigel Bankes
Faculty of Law
The University of Calgary
[email protected]
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Or, can international law save the
bear …. from the abyss
this one seems to have plenty of ice;
this mum and cubs less so
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Outline
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What are the questions?
Some preliminary matters
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Relationship between this topic and general
international law
Polar bears and climate change
The law
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FCCC
Agreement on the Conservation of Polar Bears
CITES
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The questions
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Mitigation Measures (MM)
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Adaptation Measures (AM)
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Does IWL create additional normative reasons for
taking MM?
Does IWL constrain the selection of MM?
What are the interpretive implications of IWL?
Does IWL require a state to take AM?
Does IWL constrain the choice of AM?
The interaction between CC and IWL
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How has IWL and (IWL institutions) responded to
climate change issues?
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Preliminary (related) issues
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What is the relevant applicable law?
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How do norms from different regimes interact?
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AO Nuclear Weapons; MOX Plant
A presumption of consistency
Interpretation, Article 31(3)(c), VCLT
Lex specialis
Later laws, Article 30
The ILC’s fragmentation work
The duty of good faith implementation of treaties
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Article 26
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Climate change and polar
bears
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19 or 20 sub-populations; total popn c. 20,000 –
25,000
Fidelity to denning sites
Ice specialized\dependent; ringed seal and bearded
seal; generally fast when on land
ACIA, decline in summer sea ice by 50% by 2100
Polar bear listed by IUCN as vulnerable, 2006,
suspected population reduction of 30% in three
generations (45 years)
Petition to list PB as threatened under ESA
Low reproductive rates – doubling time c.24 years
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FCCC
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Objective
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… to achieve … stabilization of greenhouse gas
concentrations in the atmosphere at a level that
would prevent dangerous anthropogenic
interference with the climate system. Such a level
should be achieved within a time-frame sufficient
to allow ecosystems to adapt naturally to climate
change, to ensure that food production is not
threatened and to enable economic development
to proceed in a sustainable manner.
Kyoto sets targets but will not achieve stabilization
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ACPB
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Background and rationale
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Over hunting especially sport hunting from ships and planes
A concern of potential participation by non-Arctic states
IUCN and the PBSG
Canada, Denmark, Norway, USSR, USA
Preamble
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Recognizing the special responsibilities and special interests
of the States of the Arctic Region in relation to the
protection of the fauna and flora of the Arctic Region
Recognizing that the polar bear is a significant resource of
the Arctic Region that requires additional protection
Having decided that such protection should be achieved
through co-ordinated national measures taken by the States
of the Arctic Region
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ACPB
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Article II
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Article IX
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Each Contracting Party shall take appropriate action (A) to
protect the ecosystems of which polar bears are a part, with
(A.1) special attention to habitat components such as
denning and feeding sites and migration patterns, and (B)
shall manage polar bear populations in accordance with
sound conservation practices based on the best available
scientific data
The Contracting Parties shall continue to consult with one
another with the object of giving further protection to polar
bears
No CoP
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but see PBSG (IUCN)
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The Arctic marine ecosystem
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Mitigation measures
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The duty to take appropriate action embraces
mitigation & adaptation
“Appropriate” measures of protection might
be related to the objective of the FCCC
Inaction is not “appropriate”
Measures less than Kyoto are not
“appropriate”
Avoid mitigation measures (e.g. gas as a
“transition fuel”) that compromise bear
habitat e.g. oil & gas exploration & pipelines
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Adaptation and ACPB
response
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Adaptation
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Re-assess existing protective measures in light of
CC e.g. for denning sites
Scrutinize new proposals to ascertain that do not
increase jeopardy to PB
Consider domestic listing options
ACPB response
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Critique of PBSG and CC
Proactive use of Article IX
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CITES
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Why a trade response (1973) to the problem
of endangered species?
Climate change & species diversity
CITES and CC to date
Polar bears and trade (Appendix II)
Possible intersections
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The listing process
The no jeopardy opinions re listed species
The CITES review process
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The listing process
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Appendix I
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Threatened with extinction
Affected by trade
The FLC criteria
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Small population
Restricted area of distribution
Marked decline in population size
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“high vulnerability to intrinsic or extrinsic factors”
Extrinsic factors include threats of rapid environmental
change e.g. climate regime shifts, as well as habitat
degradation
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Listing process
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Appendix II
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Not now threatened with extinction but may
become threatened unless trade regulated
Look alike listing
Criteria
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Less well developed
Add to the list if risk of becoming eligible for
Appendix I in “near future” (5 – 10 years)
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The no detriment opinion
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No trade in Appendix I or II species unless SA
of the range state certifies that “will not be
detrimental to the survival of that species”
The basis of a no detriment finding?
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A managed population
A scientific quota system
Canadian polar bear mgmt & conservation hunting
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CITES review processes
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Review of significant trade (RST)
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Triggered by trade data reports
Part of monitoring of trade in Appendix II species
An international assessment of no detriment
findings – possible outcomes
Process is trade-driven
Periodic review process
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Is the current listing appropriate?
Apply usual criteria
No specific reference to CC
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CITES assessment
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A trade instrument and not a habitat instrument
Mitigation measures
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Adaptation measures
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CITES will not provide additional normative reasons for
mitigation and will not constrain the choice of mitigation
measures
Same conclusion; only caveat to both is that states may
wish to take some adaptive measures to support no
detriment findings
Salience within CITES institutions?
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Unlikely to change
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