why law matters for success

Report
Building Legal Preparedness
for Biodiversity Targets:
why law matters for success
Transformative Initiatives in Biodiversity Mainstreaming and Financing
CBD COP 12, 16 October 2014
Fabiano de Andrade Correa, IDLO
‘Legal Preparedness for Achieving the Aichi Targets’:
quick overview

IDLO: rule of law and a culture of justice for sustainable development.

Legal preparedness: assessment of legal frameworks; development of
action plans; building capacity of governments and empowering
people

Countries need tailored legal solutions to biodiversity issues, and incountry legal expertise is key: need to mainstream “biodiversity laws”.
Program Mission and Activities
Launched in 2012 by the IDLO and CBD Secretariat
 Objective: To foster global collaborations to define innovative legal
solutions and build national legal capacity that can catalyze national
efforts to achieve the CBD SP and AT
 Target Beneficiaries: National legal community across sectors, CBD focal
points and officers, and governments, communities, business
 Main outputs:
•
•
•
•
•
Build up a global network of “biodiversity lawyers”
Generating new knowledge on innovative legal solutions
Developing practical toolkits on legal preparedness processes
Building capacity of lawyers through peer to peer sharing and global networks
Next steps: undertaking country programs to build country tailored legal solutions to
achieve biodiversity targets
What have we done?
2012 Scoping knowledge on the Targets
> Launch by IDLO and CBD Secretariat, with support from JBF
> Studies by national researchers on promising biodiversity laws (CISDL)
2013
Focusing on key challenges and building partnerships
> Focus on Nagoya Protocol (T16), Biodiversity Incentives (T3) and Protected Areas
(T11) - scoping papers, country studies
> New partnerships with JBF, Swiss FOEN, ABS Capacity Development Initiative,
IUCN ELC, Natural Justice and network of national lawyers
2014 Building guidance and capacity of national lawyers
> Toolkit on T16 and T3/T11/T14
> Capacity building course on building legal frameworks for the NP/T16
> Piloting for global forum of biodiversity lawyers
2015… Country programs
What have we learned?
Law can make an effective contribution to biodiversity through:

The creation, implementation and enforcement of strong legal frameworks that can mainstream
biodiversity and translate international biodiversity goals to national priorities and mechanisms;
• (e.g. different laws on impact assessment, Japan NBSAP law, Peru PES law, US laws on Bos)

The establishment and proper functioning of responsive and accountable institutions at all
levels;
• (e.g. Mexico’s CONABIO, India Biodiversity Act)

The empowerment of communities and businesses, especially the most vulnerable and
marginalized groups, to benefit from the opportunities arising from biodiversity, and to uphold
their rights related to the environment and sustainable economic development.
• (e.g. Cameroon Forest Act 1994, Namibia’s Nature Conservancy Act, Peru’s TK regime)
What have we learned?
No one-size fits all legal solution exists
> Countries are building “legal frameworks” with a mix of legal and non-legal instruments
(legislation, regulations, administrative, policy, negotiated rule-making)
Cross-sectoral “sustainable development laws” are needed that go beyond
traditional “environmental laws”.
> Effective legal frameworks comprise of a mix of legal instruments related to intellectual
property, tax law, land use planning, environment, agriculture, forestry, indigenous &
human rights, access to information, health, commercial law, contract law…
“Success” is being achieved by careful selection of the legal framework
tailored to country context and adaptation though learning-by-doing.
> The choice of legal instrument depends on the several country-specific factors – purpose, risk,
flexibility, capacity. Legal Preparedness can be key to meet biodiversity challenges.
What have we learned?
Common challenges:

Legal uncertainty: blockage for uptake incentives and businesses

Implementation and enforcement: law in practice x law on paper

Capacity of stakeholders/institutions: ability to mainstream
biodiversity and be accountable

Need for legal reform: challenge of undertaking a comprehensive
process and mainstreaming
What can be done?

IDLO: Different way of legal reform

Developed methodology of legal preparedness used across sectors
Benefits:

Focus on equitable, sustainable and effective outcomes

No one size fits all: need for tailored approach

Lawyers need to know tools available and how/when to use tools to bring
transformational change

Success often achieved by learning by doing: national legal capacity is key
and needs to be built, not only legal assistance provided externally
How can we change the way we make biodiversity
laws?

Commit to building “legal preparedness” – the development of country-tailored legal
frameworks by a team of national lawyers linked to global expert networks
1
Assess the
current legal
framework
2
Include
Stakeholders
in the
process
3
Select
appropriate
legal
instruments
4
Implement
the legal
framework
A national
legal
roadmap
Step 1 --- Step 2 --- Step 3 --- Step 4
Assess the current legal framework

Only by knowing where we start, can we effectively get to where we want to be.
Situation 1
There is a dedicated
law for the particular
issues
Situation 2
measures are
embedded within
broader environmental
laws or other pieces of
legislation
Situation 3
There is no legal
framework for the
particular issue
Step 1 --- Step 2 --- Step 3 --- Step 4
Stakeholder Engagement
Step 1: Identify
stakeholders
• Who should
be involved?



Step 2: Identify
current stakeholder
engagement
processes
Step 3: Prioritize
stakeholders’
involvement
• What types of
policies,
regulations,
finance and
governance
systems are
already in
place?
National Biodiversity Strategy and Action
Plans (NBSAP)
National development planning
documents
National budget documents
• Identify the
importance
of each
stakeholder
group,
against
different
criteria




Most influential
Most affected
Synergies b/w
stakeholders
Potential conflicts
Step 1 --- Step 2 --- Step 3 --- Step 4
Selecting Legal Instruments
How to select the most appropriate legal instrument(s)?
Legislation
Regulatory
Requirements
Formal
Regulations
Negotiated
rule-making
and comanagement
Informal
Administrative
measures
Policy
measures
Step 1 --- Step 2 --- Step 3 --- Step 4
Selecting Legal Instruments
Select categories and considerations of national
interest
Purpose
• National
interest
• Change
behavior
Flexibility
• Ability to
address
changing
requirements
Risk
• High risk
outcomes =
prescriptive
laws
Capacity
• Human
• Financial
• Institutional
Step 1 --- Step 2 --- Step 3 --- Step 4
Implementing Legal Reform
Effective implementation =
• Capacity building +
• Legal empowerment +
• Monitoring, review and verification +
• Active assessment of the success of ABS legal reform
SUMMARY
STEP 1:
Assess the
current legal
framework
1. Identify your
country
situation
2. Gap Analysis
STEP 2:
Include
stakeholders in
the legal process
1. Stakeholder
identification
2. Stakeholder
prioritization
3. Legal
measures to
codify
stakeholder
engagement
STEP 3: Select
appropriate
legal
instruments
STEP 4:
Implement the
legal framework
1. Identify
different
legal
instruments
2. Match
country
settings to
legal
instruments
1. Disseminate
information
and build
capacity
2. Establish an
assessment
framework
to measure
success
Next steps – building up from the foundation
Nagoya Protocol
Mainstreaming &
Economics
PAs and OECMs
Scoping Paper T16
Scoping Paper T3
Scoping Paper T11/14
Country studies
Country studies
Country studies
- Peru – Law No. 27811, 2002
(TK)
- Philippines, Administrative
Order No. 1, 2005
- EU Regulation 2014
More…
- Brazil – ICMS Ecologico 1991
- U.S. Clean Water Act & Army
Corps of Engineer Regulation
More…
- Fiji Islands, iTaukei Act and
iTaukei Lands Trust Act
- South Korea, Baekdudaegan
Protection Act, 2003
More…
Toolkit T16 (2014)
Capacity Building Course
Toolkit T3, 11, 14 (2014)
Thank you!

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