Module 6: legal frameworks for cooperation beyond national borders

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

2. what this module covers what decision-makers need to know about invasive species • the legal mandate for transboundary cooperation • cooperation provisions under international instruments • incorporating IAS into regional processes • components of regional cooperation and collaboration • interface between national regulations and the international trade regime Module 1 laying the foundations for effective national frameworks Module 2 preventing biological invasions Module 3 responding to biological invasions Module 4 getting results: compliance, enforcement and liability Module 5 legal frameworks for cooperation beyond borders Module 6

3. international mandate for transboundary cooperation on IAS scope of the “duty to avoid transboundary harm”? • core of the obligation is to exercise “due diligence” in taking appropriate measures to prevent or minimise the risk of transboundary harm • States to act reasonably and in good faith and ensure that public and private activities within its jurisdiction and control do not cause environmental harm (a) in other States (b) in areas beyond national jurisdiction

4. International Plant Protection Convention (IPPC) to prevent spread and introduction of plant pests through sanitary and phytosanitary measures. Regional implementation network (e.g. Phytosanitary Convention for Africa) 3 4 World Organisation for Animal Health (OIE): adresses pests/diseases of animals through Animal Health Codes that set standards for import/export procedures 5 • World Health Organisation International Health Regulations: to • prevent, protect against, control and provide public health response to international spread of disease 2 1 Marine and freshwater instruments (including Ballast Water Convention) Convention on Biological Diversity and other biodiversity-related instruments (Ramsar, Migratory Species Convention, CITES) cooperation requirements under global instruments addressing IAS

5. Rana catesbiana The CBD... • requires co-operative approaches to underpin national legal frameworks • specifically mandates consideration of cross-border impacts, including through EIA procedures • States should recognize the risk that activities within their jurisdiction or control may pose to other States as a potential source of IAS (GP4 §4) • A State’s response … may require a cooperative effort between two or more countries (GP9 §4)

6. The IPPC... • framework for international co-operation to prevent introduction of pests of plants and plant products and promote measures for their control • may cover all IAS that meets its definition of ‘pest’ and cause direct/indirect damage to wild plants/the natural environment • mandates information-sharing and reporting of incursions • mechanisms for regional harmonisation

7. high number of regional agreements and organisations already in place to address different issues (economic cooperation, trade, river management, nature conservation....) addressing IAS through existing regional processes depending on their focus, can contribute to mainstreaming IAS, especially where: ecosystems are shared co-operative arrangements between different bodies in the region are already operational national capacity is limited: resources and expertise can be pooled

8. AFRICAN CONVENTION ON THE CONSERVATION OF NATURE AND NATURAL RESOURCES Maputo, Mozambique (11 July 2003) Amending 1968 Algiers Convention Art. VIII.1.(b) The Parties shall take all necessary measures for the protection, conservation, sustainable use and rehabilitation of vegetation cover. To this end they shall: b) take concrete steps or measures to control fires, forest exploitation, land clearing for cultivation, grazing by domestic and wild animals, and invasive species; Article XXII. CO-OPERATION Parties shall co-operate between themselves and, where appropriate and possible, with other States: 2.e) whenever a natural resource or an ecosystem is transboundary, the Parties concerned shall undertake to cooperate in the conservation, development and management of such resource or ecosystem and if the need arises, set up interstate commissions for their conservation and sustainable use; 2.f) the Parties shall, prior to the export of hazardous substances, or of alien or modified organisms, undertake to secure the prior informed consent of the importing, and where appropriate, transit States.

9. Integrated Committee of Ministers oversees coordination and harmonisation e.g. in trade and industry, food, agriculture and natural resource sectors IAS prevention and cooperation referenced in Fisheries Protocol 2001, Forestry Protocol 2002 SADC Biodiversity Support Programme co-ordinating IAS guidelines for the region national SADC committees can support IAS programmes e.g. Swaziland SADC committee has assisted development of an IAS database and establishment of coordination structures to deal with IAS IAS and the Southern African Development Community (SADC)

10. components for regional cooperation and collaboration • sharing of information and expertise • standard setting and harmonisation • EIA and prior notification • regional strategy development • institutional support for capacity-building

11. sharing of information types of information to be shared: • development of inventories and databases including species (native & introduced) distribution data • incident lists and case studies • potential threats to neighbouring countries • information on taxonomy, ecology and genetics of IAS • prevention and control methods where available • national and regional guidelines • national import regulations and treatment rules • national pathway measures

12. http://www.eppo.org/STANDARDS/bioenergy.htm regional standard setting and harmonisation example: European and Mediterranean Plant Protection Organisation (EPPO) Council recommendation on plants for renewable energy and Invasive Alien Plants (09/2007) The energy strategies of several EPPO countries recommend planting bioenergy crops: some recommended plants are included in the EPPO List of Invasive Alien Plants (IAPs). NPPOs should make relevant Departments aware of risks posed by IAPs and warn them against such practices. “The planting of IAPs for energy production should not be recommended. If IAS are planted as a bio-energy crops, a risk-based approach to avoid the spread into unintended habitats should be adopted.”

13. EIA and prior notification mandated under Maputo Convention and SADC Fisheries Protocol 2001 a SADC State party must not introduce exotic species or genetically modified species to shared aquatic ecosystems, including the full extent of the river basin, unless the affected State parties agree to the introduction. State parties are also required to establish standard guidelines and regulations for the application of environmental impact assessments. (Leigh 2003)

14. interface between national regulations and the international trade regime World Trade Organisation rules and disciplines established by a series of agreements, including: Goods: GATT (General Agreement on Trade and Tariffs) as elaborated upon by WTO-SPS and TBT Agreements Service: GATS (General Agreement on Trade in Services) Intellectual Property: TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights)

15. GATT Art. XX exceptions may be permitted for measures ‘necessary to protect human, animal and plant life or health’ World Trade Organisation: basic rules 1994 Uruguay Round of Agreements aim to avoid disguised barriers to trade. Not directly concerned with environment

16. WTO Agreement on the Application of Sanitary and Phytosanitary Measures • international framework to avoid measures for the protection of human, animal or plant health or life against risks from entry, establishment or spread of pests, diseases or disease-causing organisms being used as disguised barriers to trade • promotes harmonisation: recognises 3 standard-setting organisations incl. IPPC and OIE. No specifically environmental standard-setting body • national SPS measures may be applied to extent necessary to protect these objectives, based on scientific principles and justified by risk assessment if not based on international standards. • not to be maintained without sufficient scientific evidence (Art 2.2)

17. precautionary approach: explicit in biodiversity-related agreements but only implicitly referenced in international trade rules. No common understanding of its application in trade-related context: need for case-by-case approach competent authority reviews science-based risk assessment to determine if potential risks associated with import/pathway are acceptable with regard to national policies and priorities for protection of environmental, agricultural and public health. Measures selected need to be technically justified. there is scope for « provisional measures » under SPS Agreement pending further assessment of risk – but not to be used as delaying tactic use of precaution & risk assessment in national measures

18. design indicators – when no standard available or a stricter measure required national SPS measures that prohibit entry or impose other trade-related restrictions must be: non-discriminatory and transparent consistent (e.g across different pathways by which same pest could be introduced; between national/int’l trade) as least-trade restrictive as possible

19. thank you