Polar Bears Climate Change and International Law Nigel

Polar Bears, Climate Change and International Law Nigel Bankes Faculty of Law The University of Calgary ndbankes@ucalgary. ca 1

Or, can international law save the bear …. from the abyss this one seems to have plenty of ice; this mum and cubs less so 2

Outline n n What are the questions? Some preliminary matters n n n Relationship between this topic and general international law Polar bears and climate change The law n n n FCCC Agreement on the Conservation of Polar Bears CITES 3

The questions n Mitigation Measures (MM) n n Adaptation Measures (AM) n n n 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 n How has IWL and (IWL institutions) responded to climate change issues? 4

Preliminary (related) issues n What is the relevant applicable law? n n How do norms from different regimes interact? n n n 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 n Article 26 5

Climate change and polar bears n n n n 19 or 20 sub-populations; total popn c. 20, 000 – 25, 000 Fidelity to denning sites Ice specializeddependent; 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 6

FCCC n Objective n n … 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 7

ACPB n Background and rationale n n n 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 n n n 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 8

ACPB n Article II n n Article IX n n 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 Co. P n but see PBSG (IUCN) 9

The Arctic marine ecosystem 10

Mitigation measures n n n 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 11

Adaptation and ACPB response n Adaptation n n 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 n n Critique of PBSG and CC Proactive use of Article IX 12

CITES n n n 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 n n n The listing process The no jeopardy opinions re listed species The CITES review process 13

The listing process n Appendix I n n n Threatened with extinction Affected by trade The FLC criteria n n n Small population Restricted area of distribution Marked decline in population size n n “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 14

Listing process n Appendix II n n n Not now threatened with extinction but may become threatened unless trade regulated Look alike listing Criteria n n Less well developed Add to the list if risk of becoming eligible for Appendix I in “near future” (5 – 10 years) 15

The no detriment opinion n n 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? n n n A managed population A scientific quota system Canadian polar bear mgmt & conservation hunting 16

CITES review processes n Review of significant trade (RST) n n n 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 n n n Is the current listing appropriate? Apply usual criteria No specific reference to CC 17

CITES assessment n n A trade instrument and not a habitat instrument Mitigation measures n n Adaptation measures n n 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? n Unlikely to change 18

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