Human rights in the context of the post-2020 biodiversity framework: opportuni=es to look afresh at sustainable use Elisa Morgera, Professor of Global Environmental Law Strathclyde University Law School, Glasgow, UK Elisa.Morgera@strath.ac.uk
1. Where is this refleceon coming from? BENELEX research findings: where are we at on human rights and the environment under the CBD? 2. Biodiversity-relevant pointers from internaeonal human rights processes UN Special Rapporteur on Human Rights and the Environment John Knox Human Rights Council and the SDGs 3. OpportuniEes for a post-2020 biodiversity framework Biodiversity mainstreaming & SDGs What is «sustainable use» post-2020?
1. Where is this reflec=on coming from? BENELEX research Universal Declara=on ILO Conven=on 169 {UNDRIP} UNPFII & Spec Rapp Inter-American HR system African HR system [Peasants Declara=on] Human Rights Right to Dev Intl Dev Banks SDGs Develop ment Oceans UNCLOS FAO Small-scale Fisheries Guidelines Rio Forest Principles CBD (Akwé : Kon Guidelines, POWPA, ) ITPGR (farmers rights) Nagoya Protocol on ABS Biodiversity Climate Change REDD+ Finance TK Fresh water Ramsar Res X.19 Senegal River Basin Dev Org Land UNCCD VGGT Right to Food Responsible Agric Investment (PRAI, CFS RAI OECD-FAO Guidance)
1. Insights from research on fair & equitable benefit-sharing in interna=onal law Even if under the CBD, we hardly ever use human rights language Ø CBD COP decisions have already been considered helpful by internaeonal human rights bodies to interpret human rights obliga=ons in the context of environmental governance There is much broader scope for mutual suppor=veness between the CBD and internaeonal human rights law than usually believed: Ø Fair and equitable benefit-sharing with indigenous peoples and local communiees is not just about ABS, but also about 1) conservaeon; 2) use of natural resources (extraceves) and 3) produceon/use of (tradieonal) knowledge Ø And what about access to informaeon, parecipaeon in decisionmaking & access to jusece in relaeon to biodiversity for the general public???
1. Insights (cont d): the CBD & extrac=ves in IPLCs territories Inter-American Court 2007 Saramaka (CERD) 2015 Kaliña and Lokono Garfuna Triunfo de la Cruz Garifuna Punta Piedra African Commission 2009 Endorois African Court 2017 Ogiek UN S. Rapporteur on Human Rights & Environment A/HRC/37/59 (2017) Business responsibility to respect indigenous peoples rights: Former UN S. Rapporteur on Indigenous Peoples Rights James Anaya: A/HRC/15/37; A/HRC/ 24/41; A/66/288; A/HRC/ 24/41 UK NCP Vedanta case IFC Performance Standards Environmental & socio-cultural assessments Free Prior Informed Consent Procedural? Substantive? Morgera, BENELEX WP 10 REV Convention on Biological Diversity Art 8(j) and 10(c) Akwé : Kon Guidelines on Socio-Cultural and Environmental Impact Assessments Addis Ababa Guidelines Work programme on protected areas Mo otz kuxtal Guidelines Fair & equitable benefit-sharing - Culturally appropriate - Endogenously iden=fied Saramaka int; CBD Ecosystem Approach CBD Tkarihwaie:ri Code of Ethical Conduct Compensation?
1. Insights (cont d): why mutual suppor=veness between int l biodiversity & HRs law maeers human rights standards can help delimit States discre=on in the choice of means of implementaeon under the CBD by idenefying the minimum content of State obligaeons clarifying necessary procedural guarantees (need for naeonal law & access to remedies) int l biodiversity law provides concrete guidelines on how to put human rights standards in prac=ce in complex environmental governance landscape more than a "safeguard? poteneally proaceve role to support the full realizaeon of IPLCs rights? Moving beyond pre-determined set of development opeons?
2. Pointers from interna=onal human rights processes: Framework Principles on HRs and the environment ( A/HRC/37/58) the recognieon of a human right to a healthy environment does not change the legal content of exis=ng human rights obliga=ons to protect against environmental harm: procedural obligaeons (duees to provide informaeon, facilitate parecipaeon and provide access to remedies), substaneve obligaeons (including to regulate private actors) and heightened obligaeons to those in parecularly vulnerable situaeons at a bare minimum States should consider the Framework Principles as best prac=ces that they should move to adopt as expedi=ously as possible EIA+FPIC+benefit-sharing from geneec resources, conservaeon & sustainable use (Framework Principle 15)
2. Pointers (cont d): human rights and biodiversity (A/HRC/34/49) Full enjoyment of human rights (life, health, food, water) depends on ecosystem services Biodiversity loss or degradaeon has human rights implicaeons human well-being (general HR obliga=ons) non-discrimina=on (heightened HR obliga=ons) Ensuring biodiversity conservaeon & sustainable use is also a maoer of internaeonal human rights law «reasonable» balance between biodiversity proteceon & other legiemate societal goals (no unjus=fied, foreseeable infringements of human rights) Non-regression Interna=onal coopera=on (biodiversity financing & capacity building) has HR implicaeons
2. Pointers (cont d): environment & the rights of the child (A/HRC/37/58) children are the most vulnerable group to environmental harm because they are developing physically and are less resistant to many types of environmental harm Inter-genera=onal equity Public parecipaeon: need to consider children s views on longterm environmental challenges, such as biodiversity loss, that will shape the world in which they will spend their lives in all aceons concerning children, the best interests of the child must be a primary consideraeon
2. Pointers (cont d): Human Rights & the SDGs (A/HRC/RES/37/24 & A/HRC/RES/37/25) 2030 Agenda is grounded in the Universal DeclaraEon of Human Rights and internaeonal human rights treaees The implementaeon of Agenda 2030 must be consistent with States obligaeons under internaeonal human rights law 2030 Agenda seeks to realize human rights and fundamental freedoms for all the DeclaraEon on the Right to Development, recognizing that States have the right and the duty to formulate appropriate naeonal development policies that are aimed at the constant improvement of the well-being of the enere populaeon and of all individuals, on the basis of their aceve, free and meaningful parecipaeon in development and in the fair distribueon of the benefits resuleng therefrom
3. Opportuni=es for a post-2020 biodiversity framework A long-term, strategic approach to mainstreaming biodiversity to ensure implementaeon with 2030 Agenda and 2050 Vision for Biodiversity (SBSTTA Rec. 21/4) Ø one-way process vis-à-vis other sectors Possible future arrangements and work programme on Art. 8(j) (8JWG Rec. 10/3), taking into account the 2030 Agenda Ø integraeon of tradieonal knowledge across CBD bodies (IPBES) PreparaEons for the follow-up to the Strategic Biodiversity Plan 2011-2020, incl synergies/trade-offs/limitaeons to idenefy effeceve policies to achieve the SDGs (SBSTTA Rec 21/1) Ø Human wellbeing is an internaeonal human rights maoer
3. An opportunity to look afresh at sustainable use Sustainable use must not lead to unjus=fied, foreseeable HR infringements Assessing impacts of proposed use on biodiversity ecosystem services upon which human rights of everyone to life, health, food and water depend + disaggregated data on vulnerable groups EffecEve regulaeon & monitoring of the private sector Heightened levels of proteceon «maintaining biodiversity s poteneal to meet the needs and aspiraeons of present and future generaeons» in light of human rights of children Primary consideraeon: children s best interests Link between «what» (status/benefits) & «how» targets for a post-2020 framework Public engagement vs procedural rights in determining what is sustainable use (social dimension of the ecosystem approach + due regard to human rights-holders) Private sector engagement vs business responsibility to respect human rights Financial ins=tu=ons as duty-bearers
3. Strategic linkages Heightening the urgent need to protect biodiversity Policy coherence (SDG synergies) LegiEmacy (A/HRC/34/49) New alliances? Priority?
PublicaEons, blog posts & podcasts can be freely downloaded from the BENELEX website www.facebook.com/benelexstrath/ www.linkedin.com/groups/8297435 @BENELEXstrath SCELG elisa.morgera@strath.ac.uk