HHS ILSA Law Journal Issue 1 - 2022

2022 issue 1 ILSA Law Journal

2022 issue 1 ILSA Law Journal

Table of Contents Editor in Chief’s note

1

The Guest Editors

2

Acknowledgements

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The Necessity of Strenghtening the Legal Framework Regime to Protect Mesopelagic Species Conservation from Fishing Operations - Article

By Merel Terwisscha van Scheltinga

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Resource Curse: The Challenge in Implementing International Environmental Legal Obligations Regarding Climate Change for a Newly Industrialized Country - Article

By Dara Masita

36

Do Indigenous Communities’ Special Rights Impose Special Obligations on States to Protect the Environment? - Note

By Charlotte Parker

59

Climate-Forced Displacement of Indigenous People: Enforcement Challenges - Note

By Tabitha Thijm

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EDITOR IN CHIEF’S NOTE The ILSA Law Journal invites Alumni and students of the Faculty of the International and European Law Program of The Hague University of Applied Sciences to hand in written submissions in response to our Call for Papers for the Issue I - 2022 edition of the HHS ILSA Law Journal.

This issue of the Journal focuses on the topical question of “Environmental Law: Implementation and Enforcement Challenges”. This year, the HHS ILSA Law Journal has decided to focus the discussion on the current legal regime and its shortcomings. The 26th UN Climate Change Conference of the Parties (COP26) served as an apt checkpoint for the growing focus on environmental protection by individuals, organizations and governments alike, as countries convene to update on their progress and further work towards the goals previously set in the Paris Agreement in 2016. We aim to shed light on these contemporary developments through the publication of insightful and comprehensive articles and notes on relevant international legal issues. Therefore, we believe that every circumspect observer should have the possibility to criticise or propose recommendations on how to improve the current legal framework. The discussion does not exclude interesting studies on other International and European Law topics.

Mr. Gustavo Jiménez 2021-2022 Editor in Chief of the HHS ILSA Law Journal

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THE GUEST EDITORS Dr. Sandra Nobréga Dr. Sandra Nobréga is Senior Lecturer in Law at The Hague Universeity of Applied Sciences.

Dr. Nobréga has done a bachelor in environmental sciences, a bachelor in Law, and master and PhD in Environmental Law. “For this issue, the Ilsa Journal chose a topic close to my heart: Environmental Law. It is an issue I have studied and done research on for many years having completed bachelors in Environmental Sciences and in Law in Brazil, and a master and PhD in Environmental Law in the Netherlands. Over these years, technological development and improved dissemination of information has made us aware of the impact humans have on the environment. Our contribution to environmental degradation is scientifically proven and it demands a rapid and strong response. Addressing (global) environmental problems is thus a pressing issue, which also requires a legal response. But an important question remains mostly unanswered: Which legal instruments used by which entity – national or international bodies – is optimal in the design of future environmental legislation? Much more research in this ever-growing area is needed. As such, this issue of ILSA provides a clear contribution to the analysis of the current legal framework and the potential role law can play in the future of Environmental Law. It is a great pleasure to see the students of the Faculty of the International and European Law Program of THUAS put so much effort into writing academic papers during their bachelor studies that seek to improve our environmental future. If you are interested in these young authors’ take on problems such as climate change, climate induced displacement of indigenous people and State obligation to protect the environment, you certainly should read the papers and notes contained in this issue of ILSA.” – Dr. Nobréga.

Dr. Nobréga has contributed to this issue of the ILSA Law Journal as a Guest Editor and has used her experience and expertise in the editing and publication process.

Dr. Juan Salmerón Dr. Juan Salmerón LL.M. is a Chilean attorney specialized in commercial law, intellectual property, and civil liberties. After graduating with distinction from his home university, Dr. Salmerón completed his LL.M. (cum laude) and PhD at the University of Groningen, in the Netherlands, while simultaneously serving as legal counsel in Germany for one of the largest shipping companies in the world. After leaving that position, Dr. Salmerón was recruited by a major international fashion brand to serve as their commercial and IP legal counsel. He was 2022 Issue 1 ILSA Law Journal

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then recruited by Erasmus University Rotterdam as an Assistant Professor. In 2021 he joined the Hague University as a lecturer in Commercial Law. Dr. Salmerón continues to publish in academic journals and books, and to provide legal counsel to private clients. His latest research includes the legal regulation of loot boxes in video games, the consequences of copyright in freedom of speech, and a comparative analysis of blasphemy laws.

Dr. Salmerón has contributed to this issue of the ILSA Law Journal as guest editor and has used her expertise in the editing and publication process.

Dr. Eva Maria Foldes, Dr. Mária Éva Földes, PhD is a lecturer at The Hague University of Applied Sciences, International and European Law program, researcher at the Center of Expertise on Global Governance and member of the research group Changing Role of Europe. Her research interests and teaching activities focus on European and international health law, environment and health, consumer protection, digital health, and dynamics of decision-making in the EU. She completed her PhD research at Central European University, Hungary. Prior to joining THUAS, she worked as postdoc researcher at Tilburg University’s Law School and assistant professor at the University of Vienna’s Institute for European Integration Research. Her work has been published in the Journal of European Integration; European Journal of Risk Regulation; International Journal of Public Health; Medicine, Law and Society; Constitutional Review; and European Journal of Consumer Law, and by publishers like Cambridge University Press, Oxford University Press, Routledge, Springer.

Dr. Foldes has contributed to this very topical issue of the ILSA journal as a guest-editor, using the experience she gained as guest-editor of special issues of the European Journal of Risk Regulation and the European Journal of Consumer Law.

Ms. Lucie Plasseraud Before joining the THUAS International and European Law Programme as a lecturer in European Economic Law, Ms. Lucie Plasseraud worked as a contract agent at the Court of Justice of the European Union in Luxembourg and in law firms in France and Romania. After specialising in French and international law by completing a Master's degree in International Law and Global Governance at Paris I Panthéon-Sorbonne and working at the United Nations Office on Drugs and Crime, Ms. Plasseraud continued her specialisation in international and European law by completing a post-master's degree in Internal Market Law at the University 2022 Issue 1 ILSA Law Journal

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of Amsterdam. Courses in internal market law, competition law and European law are part of the courses Ms. Plasseraud currently teaches at the University of Applied Sciences in The Hague.

Ms. Plasseraud has contributed to this issue of the ILSA Law Journal as guest editor and has used her expertise in the editing and publication process.

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ACKNOWLEDGEMENTS The ILSA Law Journal would like to acknowledge and thank the participation and work of its Guest Editors: Dr. Sandra Nobréga, Dr. Juan Salmerón, Dr. Éva Mária Földes, and Ms. Lucie Plasseraud for directing and guiding the process of selection and edition of this Issue 1 of the HHS ILSA Law Journal on the topic of Environmental Law: Implementation and Enforcement Challenges.

The Journal would also like to thank the support and collaboration of 2021-2022 ILSA Management Board, including President and Head of Social Events, Mr. Altamash Khalil; Vice-President and Head of Communications, Ms. Sophia Sporn Olivares; Head of Main Events, Ms. Carolina Savonitto; Head of Marketing, Ms. Maria Chiriacopol; and Editor in Chief of the HHS ILSA Law Journal Mr. Gustavo Jimenez.

Finally, the Journal would like to acknowledge the participation of its members including Secretary Mr. Casper Peterse, Managing Editor Ms. Olessya Dadema, and Editors Ms. Nynke Krol, Ms. Ashleigh Mulder, Ms. Finia Marie Hilmes, Mr. Jacky-Long Mouthy, Ms. Juliette Rattier, Ms. Rumet Gul, Mr. Tikhon Filonov, Ms. Romina Ruszin, Ms. Alice Frincu, Ms. Vedika Sajnani, Ms. Noemi Zenk-Agyei, and Ms. Aban Ado. This year, the selection process was solely conducted by the Guest Editors so as to avoid any bias and to ensure that the selection was based on merit.

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ISSN: 2772-9486

ARTICLES

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ISSN: 2772-9486 The Necessity of Strenghtening the Legal Framework Regime to Protect Mesopelagic Species Conservation from Fishing Operations

By Merel Terwisscha van Scheltinga*

ABSTRACT The extensive connection of the ocean food webs causes an interdependence of the pelagic zones for the conservation of their flora and fauna. The entire ocean ecosystem will be put out of its balance if the mesopelagic zone is inadequately protected in legal framework regime

.

To call attention to this issue, this paper will contemplate the necessity of sufficiently protecting the conservation of the ocean twilight zone fish on a legislative level. This paper will, therefore, underline a legislative gap and the challenges of filling this gap.

Keywords: mesopelagic, food webs, international law, fishing, ocean twilight zone, fish conservation

*

LL.B. Graduate International and European Law Program, The Hague University of Applied Sciences.

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ISSN: 2772-9486 INTRODUCTION The protection of the mesopelagic zone’s species is a relatively undiscussed subject in the international legal framework regime focused on ocean governance.1 The sea is divided into pelagic zones whereby the mesopelagic zone of the ocean lies from 200 to 1,000 metres below the sea surface. The mesopelagic zone is also known as the ocean twilight zone because only 0-1% of sunlight penetrates this pelagic level. Additionally, the epipelagic zone, otherwise known as the ocean sunlight zone or photic zone, is situated at sea level to 200 metres below the ocean surface. Due to a lack of adequate equipment and technology for fishing in the mesopelagic zone, this area was left relatively untouched by the commercial fishing industry until the 1990s.2 As a result, lawmakers have principally focused on conservation of species in the commercially-fished epipelagic area. Although the exploitation of the mesopelagic zone can be perceived as a recent and relatively undeveloped concern, this issue should not be underestimated given the great potential and rapidly increasing feasibility of commercial fishing in this area. Strengthening the international legal framework on fisheries by adequately extending its text to protect mesopelagic species is necessary to prevent detrimental harm to the entire marine ecosystem.

Naturally, the oceanic food webs do not limit themselves to national borders, and, consequently, the problems caused for the ocean due to potential overexploitation of the mesopelagic species will not merely be limited to national borders. As a result, international law is the relevant legislative sphere to use for protecting the mesopelagic zone.

This paper aims to explain how the international legal framework regime on fisheries must be strengthened to protect the mesopelagic fauna. Furthermore, this paper ultimately argues for the necessity of adequately protecting the mesopelagic zone on a legal basis. This paper is broken into four research sub questions. The first Chapter introduces the topic of fishing by explaining concepts related to the favourable conservation of marine species and their habitats; overfishing, bycatch, environmental impact assessments, and ways to prevent species exploitation. Building on this necessity of protecting marine species and their habitats, the second chapter provides a more detailed explanation as to why the mesopelagic zone and its

1

Paul E Caiger and others, ‘Growth and reproduction in mesopelagic fishes: a literature synthesis’ (2021) 78 ICES Journal of Marine Science 3 765–781.

2 FAO, ‘Review of the State World Fishery Resources: Marine Fisheries FAO Fisheries Circular No. 920, FIRM/C.920’ (1999); FAO, ‘Report of the Trilateral Workshop on Lanternfish in the Gulf of Oman, FAO Fisheries Report No. 665, FIIT/R665.’ (2001).

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ISSN: 2772-9486 species in particular have to be protected. The third chapter will analyse whether the international legal framework regime must be strengthened to protect the conservation of mesopelagic fish. Lastly, the fourth chapter addresses the recommended course of action for strengthening the international legal framework regime focused on protecting the mesopelagic zone from fishing operations.

CHAPTER 1: The importance of Protecting the Conservation of Fish from Fishing Operations 1.1. Introductory Remarks This chapter introduces the importance of fish conservation by addressing the following research sub-question: What is the importance and legal relevance of protecting the conservation of fish from fishing operations for the mesopelagic fauna? It is necessary to acknowledge the rationale behind protecting the ocean from fishing to understand the necessity of protecting the mesopelagic fish. This chapter will address the overexploitation of marine fauna through overfishing and bycatch. Furthermore, the concept of a favourable conservation will be explained. Lastly, it addresses whether a fish species can be protected through a marine protected area and/or environmental impact assessment.

1.2. Exploited Marine Biodiversity According to Article 2 of the United Nations Convention on Biodiversity, biodiversity consists of genetic diversity, species diversity, and ecosystem diversity.3 First, genetic diversity refers to the variation of genetic information within a species’ population which allows for a thriving ecosystem.4 Second, species diversity refers to the allowance of a variation in the number and frequency of a species’ population.5 Taken together, genetic and species diversity allow for a resilient marine ecosystem which is able to respond to environmental changes such

3

The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69 (CBD) art 2; Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 340-342.

4 ibid.

5 ibid.

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ISSN: 2772-9486 as climate change and global warming.6 For example, if the favourable status of marine biodiversity decreases, this would have a severe environmental impact on the world’s oxygen levels. Marine plants, particularly marine algae, provide 50-75% of oxygen in the atmosphere.7 Thirdly, ecosystem diversity only arises if there is variation in the habitats and communities within a marine environment. These three types of diversity are interconnected, and if one is harmed, the degradation of the marine environment will follow.8 A report published in 2012 by the Food and Agriculture Organisation states that 87% of marine fisheries’ capacity is fully exploited, and 29.9% of this estimate represents marine fisheries which are overexploited ‘beyond optimal yield level and including recovering and depleted stocks’.9 Additional data regarding European and North American fisheries state that one-third of the world’s fish stock is overfished.10 Although this data does not focus on the other continents’ fisheries, due to the universal global fishing demand, similar trends of overfishing are expected.11 Evidently, further research focused on the global scale of fisheries estimates that two-thirds of all global commercial fisheries are overfished.12 Moreover, in an overfished ecosystem, the overall abundance of fish stock left may be a mere 10% of the fish diversity present before the fishing operations started.13 It is correct to assume that if the mesopelagic zone is not adequately protected through regulation, this area will become overexploited.

6

ibid.

Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 346.

8 International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 342-346.

9 FAO Fisheries and Aquaculture Department, ‘The State of World Fisheries and Aquaculture No. 43’ (Food and Agriculture Organisation, 2012) 11; Gabriela Steier & Kiran K. Patel, International Farm Animal, Wildlife and Food Safety Law (Springer 2017) 1, 406.

10 Gabriela Steier & Kiran Patel, International Farm Animal, Wildlife and Food Safety Law (Springer 2017) 407; Ray Hilborn & Ulrike Hilborn, Overfishing: What Everyone Needs to Know (OUP 2012) 1, 123.

11 ibid.

12 Christopher Costello and others, ‘Status and Solutions for the World’s Unassessed Fisheries’ (2012) 338(6106) Science 1, 1-4; Gabriela Steier & Kiran K. Patel, International Farm Animal, Wildlife and Food Safety Law (Springer 2017) 1, 407.

13 Ray Hilborn & Ulrike Hilborn, Overfishing: What Everyone Needs to Know (OUP 2012) 110.

7

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ISSN: 2772-9486 1.3. Overfishing Overfishing does not merely harm one specific species or pelagic zone but the entire marine environment. For example, fisheries majorly target predator fish such as tuna, and mesopelagic fish are an essential part of the diet of marine predators.14 Overexploiting the mesopelagic fish decreases biodiversity in the currently commercially-fished species, which will harm the fishing industry.15 Species-specific legal frameworks do not effectively consider the ecosystem on which this target species depends, as the marine environment’s food webs are closely interlinked.16 This is evident in the International Convention for the Conservation of Atlantic Tuna which does not include the protection of

the tuna’s diet.17 The rules on the protection

of the target species’ diet in species-specific conventions may not continue to be excluded.

Such a legislative gap will harm the biodiversity of both the commercially fished target species and their diet of mesopelagic species. To prevent overfishing, catch limit rules are implemented through regional or national rules, but these are difficult to enforce and oversee.18 Catch limits apply to the quantity, size, and type of fish to promote sustainable fishing in a specific region.

Protecting a species from overfishing while also protecting the ecosystem’s food webs and biodiversity demands designating marine protected areas (MPAs) and marine reserves. These protected areas focus on protecting an entire habitat instead of just a targeted species, which maintains the balance of the marine food web.

1.4. Bycatch Operations which use big nets and trawling fishing equipment to catch many species at once have a high probability of resulting in indiscriminate fishing operations.19 The variety of species which are not the target of the fishing operation but are caught due to these enormous nets and trawlers are known as bycatch. The fisheries majorly throw the now dead or dying by-

14

Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 363.

15 ibid.

16 ibid.

17 ibid.

18 Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 364.

19 ibid.

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ISSN: 2772-9486 caught fish back into the ocean.20 Research shows that approximately 25% of the caught fish in fishing operations are identified as bycatch, which translates to an estimate of 30 million tons of wasted species biodiversity.21 Due to the common use of deep sea trawlers in fishing operations, the mesopelagic zone’s biodiversity is caught up in fishing practices as bycatch.

For example, in fishing operations in the Indian Sea between 2009 to 2010, due to the use of deep-sea trawlers, 32% out of the 11,488 tons of bycatch consists of the dominant mesopelagic species, the lanternfish.22 Through rules on fishing equipment standards, for example indicating appropriate mesh size, mesopelagic bycatch in fishing operations may be avoided. In 2010, new fishing equipment to fish swordfish, a mesopelagic species, was introduced in the Ligurian Sea, an arm of the Mediterranean Sea.23 The traditional surface long line was substituted for the mesopelagic swordfish long line to maximise profit by greatly reducing bycatch and increasing the number of caught target species.24 Although this equipment is of great long-term financial advantage, with the absence of a legal mandate pushing for its implementation, the fast majority of the fishing industry has been unenthusiastic to change its current ways. Moreover, data from 1990-2009 shows that 50% of the Ligurian Sea’s mesopelagic swordfish catches were bycatch of the pelagic stingray. After the implementation of the new fishing gear, the data from 20102013 shows that this pelagic stingray bycatch accounted for only 2.3% of the catches.25 This evidently shows that mesopelagic sustainable fishing equipment is not only beneficial for the protection of mesopelagic fish but also financially significant for the commercial fishing industry.

20

ibid.

Caroline Ash, ‘A Desktop View of Overfishing’ (2004) 305 Science 1242; Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 354.

22 Boopendranath and others., ‘Final Report on CIFT Project Component on Development of Harvest and Postharvest Technologies for Utilisation of Myctophid Resources in the Arabian Sea pertaining to MoES/CMLRE Project on Assessment of Myctophid Resources in the Arabian Sea and Development of Harvest and Postharvest Technologies’ (Central Institute of Fisheries Technology, 2012) 246.

23 Fulvio Garibaldi, ‘Bycatch in the Mesopelagic Swordfish Longline Fishery in the Ligurian Sea (Western Mediterranean)’ (2015) 71(3) ICCAT 1495, 1495-1498.

24 ibid.

25 ibid.

21

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ISSN: 2772-9486 1.5. Marine Protected Areas and Marine Reserves Marine protected areas (MPAs), or marine reserves, are designated to improve fishery management and to protect both a species’ and habitat’s conservation.26 Such an area is dependent on the monitoring, control, and surveillance operations that are implemented upon its designation.27 Marine reserves are a type of MPA. An MPA limits extractive operations by law whereas a marine reserve prohibits such activities.28 The International Union for the Conservation of Nature (IUCN) defines an MPA as a ‘clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values’.29 Although the international and regional legislation defining MPAs is not uniform, all forms of legislation focus on the protection and conservation of biodiversity.30 The designation of an MPA improves species density, biodiversity of the number of species, biomass size, species body size, and the reproductive potential of species to prosper.31 For example, after the Apo Island in the Philippines was designated as an MPA, their fish population increased and fishermen saw a 50% increase in catch in the neighbouring areas.32 As fish know no borders, the increased biodiversity of the MPA overflowed to the non-protected areas, causing an increase of fish population in the surrounding area and increased profits for the fishermen. Although the same exact results cannot be expected, internationally recognised MPA principles will encourage protection and conservation of biodiversity as was the case for the Apo Island.

Marine reserves, unlike MPAs, may entirely prohibit extractive operations such as fishing instead of limiting them to allow marine biodiversity to grow. For example, the Tonga Island Marine Reserve in Oceania increased their number of crayfish by more than seven times and the blue cod species increased by forty times.33 Marine reserves focus on focal species and

26

Sara Monteiro and others, ‘Improving Fishery Law Enforcement in Marine Protected Areas’ (2009) 1 Aegean Rev Law Sea 95, 97.

27 ibid.

28 Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 365.

29 Michelle Bender, ‘An Earth Law Framework For Marine Protected Areas’ (Earth Law Center, 2017) 6.

30 ibid.

31 Alan White & Alison Green, ‘Introduction in Special Issue on Establishing a Region-wide System of Marine Protected Areas in the Coral Triangle’ (2014) 42(2) Coastal Management 81–86.

32 Michelle Bender, ‘An Earth Law Framework For Marine Protected Areas’ (Earth Law Center, 2017) 6.

33 ibid.

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ISSN: 2772-9486 protect their movement patterns from threats. It has been proven that a marine reserve must be twice as large as the focal species’ home range to be effective. If, however, effective management is in place, then this size may be smaller.34 Furthermore, as marine reserves still allow for non-extractive uses of the area, such as diving, the local community may benefit from the ecotourism possibilities of a marine reserve.

Even if an MPA has been designated, it may not be implemented in practice due to the lack of a consistent legal and policy framework. For instance, one study has found that approximately one quarter of the 433 evaluated MPAs provided insufficient protective benefits for the designation of a protected area.35 Consequently, a consistent international legal framework addressing the designation process of an MPA is needed to protect the mesopelagic zone’s biodiversity.

1.6. Environmental Impact Assessment An environmental impact assessment (EIA) evaluates the potential and foreseeable impacts of an activity, such as fishing, on the marine environment. The assessment provides a clear overview of the environmental effects, risks, and consequences of the proposed activity.36 An EIA is conducted to ensure that the rules and measures on environmental protection are followed while participating in an activity such as commercial fishing in a mesopelagic area.37 These assessments aim to ensure stakeholder involvement and allow for decision makers to make informed decisions on the new activity.38 An EIA whose scope is extended to the mesopelagic zone allows for further research on mesopelagic areas and an examination of the sustainability of a specific mesopelagic fishery activity. Requiring an EIA

will provide more

information on the impact of mesopelagic fishing operations and the sustainability of fishing in these areas.

34

Alison Green and others, ‘Larval dispersal and movement patterns of coral reef fishes, and implications for marine reserve network design’ (2014) 90(4) Biological Reviews 1215, 1215-1217.

35 Michelle Bender, ‘An Earth Law Framework For Marine Protected Areas’ (Earth Law Center, 2017) 6.

36 Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas Project 2021) 19.

37 ibid.

38 ibid.

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ISSN: 2772-9486 1.7. Concluding Remarks To conclude, the exploitation of the mesopelagic fauna will have detrimental consequences for our marine environment. As the oceanic ecosystem is greatly interlinked, the conservation of any pelagic zone and its species is important, including the mesopelagic area. Protecting the marine environment and its species demands a consistent international legal framework with rules on sustainable fishing equipment, the designation and management of MPAs, and guidelines on an EIA. CHAPTER 2: The importance of Protecting Mesopelagic Species Conservation 2.1. Introductory Remarks This chapter examines the potential global biomass of the mesopelagic zone and the potential of overexploitation of the mesopelagic species through fishing operations by addressing the following research sub-question: Is the protection of the mesopelagic zone species imperative for the survival of the ocean? Responding to this question is necessary for understanding the effects of the overexploitation of this zone on the ocean’s food webs and carbon cycle. Furthermore, this chapter introduces the gradual growth of the scale of mesopelagic commercial fisheries.

2.2. The Feasibility of Fishing the Mesopelagic Zone The mesopelagic zone’s fauna consists of gelatinous species such as ctenophores, siphonophores, and hydromedusae. Furthermore, this area consists of fishes, shrimps, squids, and zooplankton. Mesopelagic fisheries do not only focus on direct human consumption of these species, as they are also in demand by the fish oil, pharmaceuticals, nutraceutical, and cosmetic industries. Furthermore, mesopelagic fauna can be used as food for the aquaculture

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ISSN: 2772-9486 industry and animal feed industries.39 Lastly, recent research has highlighted their potential as a source of anticancer and antimicrobial compounds.40 The first pieces of research on the potential significance of lanternfish to the fishing industry were published in the 1960s. Records of commercial fishing operations date back quite early, to 1977, but the scale of the practices is still growing at a slow pace.41 Lanternfish account for the majority of the commercial mesopelagic fishing operations, representing 65% of the mesopelagic biomass.42 Between 1970 and 2015, the average annual catch for lanternfish was 10,640 tons.43 Currently, commercial mesopelagic fisheries are mainly situated in Oman and South Africa, and the Gulf of Oman has an estimated mesopelagic biomass of 5-20 million tonnes.44 In the North Atlantic Ocean, approximately 13,000 tonnes of lanternfish were caught in 2001-2002, while 73,000 tonnes of silvery light fish were caught in 2009-2011.45 In the South Atlantic Ocean, 8,000 tons of mesopelagic fish were caught in 2011, and 5.830 tons were fished in 2018.46 Lastly, the European Union created a 13 million euro budget in 2019 for two projects on mesopelagic fisheries.47 In other words, the mesopelagic zone has been of national and regional interest for decades.

There was a peak of a 74,751 tonne annual catch of lanternfish in 1990, but the majority of the 1990s operations have been abandoned due to low commercial profits and poor catches.48 Although never fully proven, the poor catches were most likely due to the spatial migration patterns of these species, which limit the availability of the mesopelagic species in the studied

39

Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 17.; Paras Nath Jha and others., ‘Mesopelagics: A promising fishery resource for future’ (2019) 5(1) FishTech Rep. 1, 1-3.

40 Chiara Lauritano and others, ‘First evidence of anticancer and antimicrobial activity in Mediterranean mesopelagic species’ (2020) 10(4929) Scientific Reports 1, 1-2.

41 FAO, ‘Review of the State World Fishery Resources: Marine Fisheries FAO Fisheries Circular No. 920, FIRM/C.920’ (1997).

42 Raúl Prellezo, ‘Exploring the economic viability of a mesopelagic fishery in the Bay of Biscay’ (2018) 76(3) ICES Journal of Marine Science 771, 771-773.

43 FAO, ‘Report of the Trilateral Workshop on Lanternfish in the Gulf of Oman, FAO Fisheries Report No. 665, FIIT/R665.’ (2001); Paras Nath Jha and others, ‘Mesopelagics: A promising fishery resource for future’ (2019) 5(1) FishTech Rep. 1, 1-3.

44 Paras Nath Jha and others, ‘Mesopelagics: A promising fishery resource for future’ (2019) 5(1) FishTech Rep 1.

45 ibid.

46 Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 9.

47 ibid.

48 Karl-Hermann Kock, ‘Understanding CCAMLR’s Approach to Management’ (CCAMLR, 2000) 15-44.

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ISSN: 2772-9486 fishing area.49 Additional difficulties which hinder fisheries from extending their expertise to mesopelagic fish are the species' small size, presence of wax/esters in the tissue, uncertainty in shoal identification, and deep-sea fishing.50 Furthermore, lanternfish emit light senses and respond to the movement of the fishing equipment due to the frequency vibrations and pressure waters which makes it difficult to catch this species.51 Difficulties that hinder fishing operations can be overcome with a proportional trawl design and an appropriate mesh size of the netting to allow for profitable fishing.52 Further research is necessary to understand the exact necessary proportions of the fishing equipment that facilitate profitable mesopelagic fishing. The legal framework governing the mesopelagic fishing equipment rules must account for the potential of mesopelagic commercial fishing instead of the current operations, as these can be significantly expanded if improved fishing technology and equipment are adequately utilised.

2.3. Mesopelagic Zone Biomas The global biomass of mesopelagic species is expressed through estimates which quantify the potential of commercial fishing in the mesopelagic zone. Recent research on the mesopelagic area of the latitudes 70° N and 70° S has estimated that the global mesopelagic species biomass is 9-19.5 gigatonnes, which is approximately 100 times the annual catch of current commercial fisheries.53 Scholar Irigoien’s research on the region of the latitudes 40° N and 40° S even suggests an approximately 30% higher estimate of the global mesopelagic species biomass as 14.3 to <19.5 gigatonnes.54 Notably, other studies estimate the global mesopelagic species biomass significantly lower. For instance, Scholar Anderson values the

49

Raúl Prellezo, ‘Exploring the economic viability of a mesopelagic fishery in the Bay of Biscay’ (2018) 76(3) ICES Journal of Marine Science 771, 771-773.

50 Paras Nath Jha and others, ‘Mesopelagics: A promising fishery resource for future’ (2019) 5(1) FishTech Rep. 1, 1-2.

51 Christopher Glass & Clement Wardle, ‘Comparison of the reaction of fish to a trawl gear, at high and low light intensities’ (1989) 7(3) Fish. Res. 249-266.

52 Abbas Ziaee Shilat & Tooraj Valinassab, ‘FAO Fisheries Circular No. 935: Trial fishing for lanternfishes (myctophids) in Gulf of Oman (1989-1990)’ (FAO Fisheries Technical Paper, 1998) 1, 66.

53 Roland Proud and others, ‘Biogeography of the Global Ocean’s Mesopelagic Zone’ (2017) 27(1) Current Biology 112, 113-119; Glen Wright et al., ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 6.

54 Xabier Irigoien and others, ‘Large mesopelagic fishes biomass and trophic efficiency in the open ocean’ (2014) 5(3271) Nat Commun 1-2.

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ISSN: 2772-9486 global mesopelagic biomass as 1 to <2.4 gigatonnes.55 Scholars Gjøsaeter and Kawaguchi’s 1980 study presents a similar global biomass estimate of 1 gigaton. However, their method used to estimate the biomass has been criticised by Scholar Kaartvedt in 2012.56 Although the estimates of the global biomass differ due to the different methods used to analyse the mesopelagic global biomass, this does not diminish the gravity of exploiting the mesopelagic zone. It is estimated that 60% of the earth’s surface reaches the mesopelagic zone and 20% of the ocean’s volume is situated in this zone.57 The mesopelagic zone has enormous potential to feed our growing world population. However, this should not be at the expense of the ocean’s survival, as the mesopelagic zone plays a crucial role in the ocean food webs and global carbon cycle.58 2.4. Consequences of Mesopelagic Species Overexploitation 2.4.1. Interlinked Ocean Food Webs Many mesopelagic fishes, squid, zooplankton, and other organisms participate in the largest animal migration on this planet by vertically migrating every day from the mesopelagic zone to the surface waters.59 Scholar Hoagland states that, due to the migratory nature of mesopelagic marine animals, these fauna are subject to the diet of a large range of pelagic predators including commercially caught tuna, sharks, swordfish, and billfish.60 Moreover, Hoagland and Martin state that the diet of the mesopelagic fish consists of deep-sea bottom fauna, for example, by seamounts.61 Consequently, mesopelagic marine life is a key component

55

Simon Jennings & Kate Collingridge, ‘Predicting Consumer Biomass, Size-Structure, Production, Catch Potential, Responses to Fishing and Associated Uncertainties in the World’s Marine Ecosystems’ (2015) 10(7) PloS ONE 1-28; Thomas Anderson and others, ‘Quantifying carbon fluxes from primary production to mesopelagic fish using a simple food web model’ (2019) 76(3) ICES Journal of Marine Science 690, 690-701.

56 Jacob Gjøsaeter & Kouichi Kawaguchi, ‘A review of the world resources of mesopelagic fish No. 193’ (FAO Fisheries Technical Paper, 1980) 151; Stein Kaartvedt and others, ‘Efficient trawl avoidance by mesopelagic fishes causes large underestimation of their biomass’ (2012) 456 Marine Ecology Progress Series 1–6.

57 Roland Proud and others, ‘Biogeography of the Global Ocean’s Mesopelagic Zone’ (2017) 27(1) Current Biology 112, 113-119.

58 Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 9.

59 ibid 16.

60 ibid.

61 ibid.

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ISSN: 2772-9486 of the food webs on all pelagic levels of the ocean and carbon cycle.62 In other words, the consequences of overexploitation in the mesopelagic zone will affect the fauna in all pelagic zones.

2.4.2. The Mesopelagic Zone’s Impact on the Ocean’s Carbon Cycle Analysing the biomass of the mesopelagic zone is necessary for understanding the role of this zone in the marine environment and the consequences of its exploitation. The mesopelagic zone is an essential part of the ocean carbon cycle which is part of the global biogeochemical cycle. A carbon cycle regulates the flow of carbon and how the planet conserves and uses elements and compounds.63 The ocean absorbs one-third of human-caused carbon dioxide (CO2) emissions and 90% of excess heat caused by greenhouse gas emission.64 If the biological carbon pump, which maintains balance of the ocean’s carbon cycle, is negatively affected due to the exploitation of the mesopelagic species, the increased CO2 will raise ocean surface temperatures and cause ocean acidification and deoxygenation.65 These forms of global warming will deteriorate the marine ecosystem, changing the diversity and abundance of marine fauna and threatening the resources and economic and food security of both local and global industries.66 Due to the great global biomass of mesopelagic fauna, approximately 3-15% of the ocean’s carbonate production is contributed to by fish, and this production is largely dependent on the well-being of the mesopelagic fish.67 The contributions of mesopelagic fish to this biological carbon pump is evident in the net amount of carbon deriving from the mesopelagic zone, which is estimated to be between two and six billion metric tons annually. In contrast, one billion

62

ibid.

Roland Proud and others, ‘From siphonophores to deep scattering layers: uncertainty ranges for the estimation of global mesopelagic fish biomass’ (2019) 76 ICES Journal of Marine Science 718, 718-719.

64 Lisa Levin and others, ‘Deep-ocean climate change impacts on habitat, fish and fisheries’ (FAO Fisheries Technical Paper, 2018) 8.

65 Dan Laffoley & John Baxter, ‘Explaining Ocean Warming’ (IUCN, 2016) 10-11.

66 ibid.

67 Frank Millero and others, ‘Contribution of fish to the marine inorganic carbon cycle’ (2009) 323(5912) Science 259, 359-362; Sarah Purkey & Gregory Johnson, ‘Warming of global abyssal and deep Southern Ocean waters between the 1990s and 2000s: contributions to global heat and sea level rise budgets’ (2010) 23 Journal of Climate 6336, 6336–6351; Cecilie Mauritzen and others, ‘Importance of density-compensated temperature change for deep North Atlantic Ocean heat uptake’ (2012) 5 Nature Geoscience 1, 1.

63

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ISSN: 2772-9486 metric tons of carbon dioxide is emitted by automobiles worldwide.68 If the mesopelagic fishes are overexploited, this would have a severe impact on climate change, as the amount of carbon dioxide these species take up will be limited.69 2.5. Concluding Remarks Allowing the current mesopelagic commercial fishery scale to reach its full potential without an adequate conservation legal framework in place will have an adverse impact on the balance of the entire ocean. Before further exploitation of this area, it is necessary to further examine the role of the mesopelagic zone in preserving the ocean’s biodiversity and preventing global warming and climate change. Further research is necessary to understand how the existing international legal framework must be shaped to adequately protect mesopelagic fauna.

CHAPTER 3: Legal Frameworks Protecting Mesopelagic Species Conservation from Fishing Operations 2.1. Introductory Remarks This chapter focuses on examining the relevant legal frameworks by addressing the research sub-question: Do ocean legal frameworks protect the mesopelagic zone from fishing operations? The relevant ocean governance frameworks focused on in this chapter are: the United Nations Convention for the Law of the Sea (UNCLOS), the United Nations Fish Stocks Agreement (UNFSA), the United Nations General Assembly Resolution 61/105, and the Convention for Biological Diversity (CBD). Notably, UNFSA, Resolution 61/105, and the CBD help to provide further depth on UNCLOS’s text. Furthermore, this chapter addresses the use of the Food and Agriculture Organisation of the United Nations (FAO) and Regional Fisheries Management Organisations (RFMOs), as these institutions practically implement the protection of the marine environment. By accounting for these legal frameworks, this work

68

Kristina Gjerde, Glen Wright, Carole Durussel ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 16.

69 Virginia Gewin, ‘Fishing the Deep’ (Hakai Magazine, 2016) <https://www.hakaimagazine.com/news/fishingdeep/> accessed 2 April 2021.

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ISSN: 2772-9486 examines whether the legal protection for the mesopelagic zone is adequate or must be strengthened.

2.2. The United Nations Convention for the Law of the Sea UNCLOS entered into force in 1994 with the aim of encouraging states to equitably and efficiently utilise ocean resources and protect the conservation of fish.70 Article 192 of UNCLOS identifies that this comprehensive international ocean governance framework has established the general obligation for states to protect and preserve the conservation of the marine environment.71 The Southern Bluefin Tuna case by the International Tribunal for the Law of the Sea (ITLOS) emphasised that protection of the marine environment includes marine life.72 According to Article 192, the duty to preserve and protect the marine environment is not restricted to any specific marine area or pelagic zone. Moreover, significant transboundary harm to a marine environment, such as the mesopelagic zone, should be prevented, as emphasised in the Pulp Mills case and Legality of the Threat or Use of Nuclear Weapons advisory opinion.73 Additionally, UNCLOS Article 194(5) emphasises the obligation to preserve ‘fragile ecosystems and depleted, threatened, or endangered species’.74 Although UNCLOS does not provide a definition of an ‘ecosystem’, for the sake of interpretation, the definition in CBD Article 2 is generally used as established in the Republic of the Philippines v. People's Republic of China case Paragraph 945.75 Article 2 of the CBD defines an ecosystem as a dynamic complex whereby the fauna and their habitat interact as a functional unit.76 Furthermore, the fragility of an ecosystem is identified according to ‘the degree of change in

70

United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 397 Preamble.

71 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 397 art 192.

72 Southern Bluefin Tuna cases (New Zealand v. Japan; Australia v. Japan) (Provisional Measures Order) [2000] ITLOS Rep 2000 Para 23; Myron Nordquist et al., United Nations Convention on the Law of the Sea 1982: A Commentary: Volume IV (Martinus Nijhoff Publishers 1991) 43.

73 Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) [2006] ICJ Rep 113 Para 101; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 Para 29.

74 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 397 Article 194(5).

75 In the Matter of the South China Sea Arbitration (Republic of the Philippines v. People's Republic of China) (2015) ICGJ 495 Para 945; The Convention on Biological Diversity (adopted 5 June 1992 and entered into force 29 December 1993) 1760 UNTS 69 (CBD) Article 2.

76 The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69 (CBD) Article 2.

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ISSN: 2772-9486 abundance of species’ following the impact of the harm which causes the ecosystem to be fragile.77 If the exploitation of the mesopelagic zone causes a severe change in abundance, the unprotected mesopelagic zone is to be identified as a fragile ecosystem. However, this merely allows for reparations, as the mesopelagic zone has not experienced a change of abundance due to exploitation yet. Consequently, to prevent severe harm, UNCLOS Article 194(5) cannot be used to protect the mesopelagic zone and its fauna and is not an adequate basis to protect the mesopelagic zone from future overexploitation.78 Ultimately, UNCLOS merely provides a general duty for states to protect the marine environment.79 UNCLOS provisions preventing and remedying harm to the mesopelagic zone do not explicitly mention the necessity of protecting the mesopelagic zone, and the International Court of Justice has yet to extend UNCLOS fish conservation protection to the mesopelagic zone.80 It can be argued that there is no reason to include mesopelagic species protection on such a high international level as there is no specific reference to the epipelagic species in UNCLOS either. Other legal regimes that allow for more specific fish protection must therefore be examined. Either way, considering the aforementioned statistics of overfishing, fishing protection also lacks for epipelagic species. Therefore, epipelagic species protection must not be a conservation standard to compare against. In conclusion, UNCLOS provides insufficient protection for the mesopelagic zone fish, as its provisions are too vague as a legal basis for protecting the conservation of the mesopelagic species.

2.3. The United Nations Fish Stocks Agreement The UNFSA (1995) strengthens and builds on UNCLOS obligations in a more detailed manner.81 This agreement provides guidance on the precautionary approach to fishery management and the implementation of the protection of biodiversity and ecosystem.82

77

Christer Nilsson and Gunnell Grelsson, 'The Fragility of Ecosystems: A Review' (1995) 32(4) J Appl. Ecol.

677, 678.

78 United Nations Convention on the Law of the Sea 1982, 1833 United Nations Treaty Series 397 Article 194.

79 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 397 Article 192.

80 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 397 Article 192.

81 Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 24.

82 ibid.

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ISSN: 2772-9486 According to UNFSA Article 6, if the status of a species is of concern, states must monitor the efficacy of conservation and management measures in place.83 This article, moreover, provides that a state must adopt cautious conservation and management measures upon the establishment of new or exploratory fisheries of target stock. Such action must be executed until an EIA on the long-term sustainability of the fisheries concludes more appropriate conservation and management measures to be enacted.84 This precautionary article, which allows for cautious conservation and management measures such as catch and effort limits of targeted species, is applicable to the mesopelagic zone given that its text includes straddling fish stocks.85 The United Nations General Assembly 61/105 further establishes that the UNFSA's general principles are applicable to discrete fish stocks on the high seas, also known as straddling fish stock.86 Straddling fish stock are fish that exist or migrate in more than one sovereign state’s waters. The mesopelagic zone fauna exists anywhere at a depth of 200-1,000 metres and does not limit its movement to national borders. In other words, mesopelagic fish are considered to be straddling fish stock.

The lack of research on this particular pelagic zone makes mesopelagic fishing an unforeseeable threat to the marine environment. It is necessary to apply precautionary measures to protect the mesopelagic fauna from exploitation until sufficient data has been found to provide an EIA of the area’s mesopelagic fishing.

The 2016 UNFSA review conference influenced the development of RFMO’s focus on managing deep-sea fisheries.87 The RFMOs which focus on deep-sea fisheries gave rise to the responsibility of states to inform the relevant RFMO of their plans to fish in the mesopelagic zone and comply with the applicable measures and obligations. Additionally, states must

83

UNGA, Conf 164/37 (8 September 1995) UN Fish Stocks Agreement (UNFSA) Un Doc A/CONF/164/37 Article 6.

84 ibid.

85 Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 24; UNGA, Conf 164/37 (8 September 1995) UN Fish Stocks Agreement (UNFSA) Un Doc A/CONF/164/37 Article 6.

86 UNGA, Res 61/105 (8 December 2006) UN Doc A/RES/61/105; UNGA, Conf 164/37 (8 September 1995) UN Fish Stocks Agreement (UNFSA) Un Doc A/CONF/164/37 Article 6; Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 24.

87 Solène Guggisberg, ‘The Use of CITES for Commercially Exploited Fish Species’ 35 Hamburg Studies on Maritime Affairs 1, 50.

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ISSN: 2772-9486 cooperate in the management of mesopelagic fish stocks.88 As a result, scientific data on the deep-sea fisheries in the mesopelagic zone which this cooperation of management provides is gathered. However, as deep-sea fisheries can be situated between 200 and 2,000 metres beneath the ocean surface, the creation of the deep-sea fisheries RFMO may not necessarily be applicable to the 200-1,000 metre-deep mesopelagic zone.

To conclude, although the UNFSA provides guidance on fish stock management and the precautionary principle, no reference to the mesopelagic zone is made in these provisions, which makes it difficult for the UNFSA to provide a legal basis for the protection of mesopelagic fauna. Furthermore, the obligations arising from the establishment of the deepsea fisheries RFMO may not necessarily apply to the mesopelagic zone. Although UNCLOS and UNFSA allow for a basis of protection for the mesopelagic zone, this will not protect the mesopelagic zone’s fish.

2.4. The United Nations General Assembly Resolution 61/105 The United Nations General Assembly (UNGA) adopts resolutions of the law of the sea and coordinates resolutions regarding sustainable fisheries whereby FAO takes effective measures, improves fisheries practices, increases state cooperation, or ratifies treaties.89 There is, however, still a lack of guidance regarding how UNCLOS obligations should be followed by states.

The 2006 UNGA Resolution 61/105 addresses the management of discrete high-sea fish stocks not covered in the UNFSA.90 This resolution includes the management of deep-sea bottom fisheries, which are urged to operate sustainably and favourably for marine biodiversity. There are no provisions explicitly protecting the mesopelagic zone. However, the mesopelagic zone may still be implicitly protected as paragraph 83 does state a rule for vulnerable marine ecosystems that fisheries are not allowed to operate in unless it can be proven that the fisheries will not cause ‘significant adverse impact’ on the marine environment.91 To

88

UNGA, Conf 164/37 (8 September 1995) UN Fish Stocks Agreement (UNFSA) Un Doc A/CONF/164/37 Article 8.

89 UNGA, Res 65/38 (7 December 2010) UN Doc A/RES/65/38 Para 5, 36, 62, 101, 105, 107.

90 UNGA, Res 61/105 (8 December 2006) UN Doc A/RES/61/105.

91 Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 26; UNGA, Res 61/105 (8 December 2006) UN Doc A/RES/61/105 Para 83.

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ISSN: 2772-9486 conclude, no specific provisions are provided on the mesopelagic zone, and this resolution, similar to the legal frameworks mentioned before, does not ensure an adequate legal basis to protect the conservation of mesopelagic fish.

2.5. The Convention for Biological Diversity (CBD) The CBD creates binding rules for EIAs to protect biodiversity. Article 14 of the CBD claims that each contracting party, if appropriate and possible, has to introduce procedures requiring an EIA of operations that are foreseeably going to cause significant adverse impacts on the ocean’s biodiversity.92 Article 14(a) states that such procedures must aim to avoid or minimise these effects.93 In 2008, the CBD recognised the process of designating an ‘ecologically or biologically significant marine area (EBSA)’.94 Although an EBSA designation does not give rise to any conservation and management measures to be followed, it encourages state parties and intergovernmental organisations to cooperate in the creation of legislative measures for the conservation and sustainable use of marine areas.95 The Arabian Sea oxygen minimum zone is an EBSA focused on the productivity of mesopelagic ecosystems and their lanternfish.96 Furthermore, the North-East Pacific white shark offshore aggregation area is defined as an EBSA because of its high fish productivity. It has also been argued that its high productivity is caused by the mesopelagic fauna.97 However, due to the sparse scientific research available, very few mesopelagic additional areas have been defined as an EBSA. To conclude, CBD Article 14 can be used to require an EIA if a mesopelagic fishing operation is likely to have significant adverse impacts. However, as the EIA procedure is a national matter of the relevant contracting party, this international legal framework does not provide a uniform procedure for an EIA to be implemented. Furthermore, an EBSA designation does not provide a legal basis which protects the conservation of the mesopelagic habitats and

92

The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69 (CBD) Article 14 93 The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69 (CBD) Article 14(a).

94 Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 10.

95 ibid.

96 Ecologically or Biologically Significant Areas, ‘Arabian Sea Oxygen Minimum Zone’ (Convention on Biological Diversity, July 2017) <https://chm.cbd.int/database/record?documentID=237787> accessed 2 April 2021.

97 ibid.

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ISSN: 2772-9486 their fish. It merely encourages states and international organisations’ cooperation in the creation of legislative measures for the conservation of the mesopelagic zone.

2.6. The Food and Agriculture Organization of the United Nations The FAO focuses on assisting member states with their agricultural operations, and their committee on fisheries has an expertise in examining fisheries and aquaculture issues.98 The FAO Code of Conduct for Responsible Fishing (1995) strongly discourages fisheries to operate without an assessment of the area’s biodiversity. This is done to prevent, according to paragraph 7(5)(4), impacts ‘on the long-term sustainability of the stocks’.99 The FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009) paragraphs 17-20 provide interpretational guidelines of ‘significant adverse impacts’, as mentioned in UNGA Resolution 61/105 and the CBD.100 The Deep-sea Fisheries Guidelines paragraph 17 states that significant adverse impacts occur when an ecosystem’s integrity is compromised. In this case, the ability of the affected population to replace themselves is impaired, the long-term natural productivity of habitats degrades, or a significant loss of species abundance or habitats is caused and this is not merely a temporary matter.101 Paragraph 18 further elaborates that upon determining the significance of the impact, the six factors to be considered are as follows: the intensity or severity of the impact, the spatial extent of the impact, the vulnerability of the ecosystem to such impact, the recoverability of the ecosystem from the impact, the degree of alteration of ecosystem function because of the impact, and the timing and duration of the impact.102 If significant adverse impacts will likely occur, fishers will not be allowed to operate and according to CBD Article 14 and UNGA Resolution 61/105 Paragraph 83 an EIA may be required to be imposed.103 The CBD and UNGA could therefore

98

Solène Guggisberg, ‘The Use of CITES for Commercially Exploited Fish Species’ 35 Hamburg Studies on Maritime Affairs 1, 50.

99 UN FAO Fisheries Department Code of Conduct for Responsible Fisheries (1995) Para 7(5)(4).

100 UN FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009) Paras 17-20; Kristina Gjerde, Glen Wright, Carole Durussel ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 24.

101 UN FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009) Para 17.

102 ibid Para 18.

103 The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69 (CBD) Article 14; UNGA, Res 61/105 (8 December 2006) UN Doc A/RES/61/105 Para 83.

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ISSN: 2772-9486 protect the mesopelagic species, however, the language is too vague to act upon. Moreover, the UNGA Resolution 61/105 and CBD provide no uniform procedure for the creation of an EIA.104 Consequently, the legal basis provided in UNGA Resolution 61/105 and the CBD must be strengthened by providing a stronger legal ground to protect the conservation of the mesopelagic species.

2.7. Regional Fisheries Management Organizations Regional fisheries management organisations cover the majority of the high seas’ nonbinding rules and guidelines, and these organisations have a focus on conserving and managing fish stock.105 Moreover, RFMOs do not focus on the adoption of binding measures or the management of fisheries but instead offer advisory or scientific expertise on ocean governance.

Most RFMOs are classified as international organisations that have a legal personality to exercise their implied powers, such as the International Council for the Exploration of the Sea, but this depends on the founding treaty of the organisation.106 Most RFMO rules are either focused on a targeted species such as tuna or are too vague to be applied to protect the mesopelagic zone. One example is the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (2001) from the South East Atlantic Fisheries Organisation.107 Although this framework’s exploratory fishery rules focus on deep-sea bottom fisheries, the convention does not necessarily require a biodiversity impact assessment before fishing in the mesopelagic zone, as it does not explicitly state the mesopelagic area or its fauna but instead the bottom fishes.108 As scientific research is still scarce on this topic, obliging a marine EIA is a necessary amendment for understanding the effect on the biodiversity and food webs of mesopelagic fisheries in the relevant area prior to the fishing operations.

104

The Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69 (CBD); UNGA, Res 61/105 (8 December 2006) UN Doc A/RES/61/105.

105 Solène Guggisberg, ‘The Use of CITES for Commercially Exploited Fish Species’ 35 Hamburg Studies on Maritime Affairs 1, 50.

106 ibid.

107 UN FAO Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (2001).

108 ibid.

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ISSN: 2772-9486 2.8. Concluding Remarks Current legal frameworks state that new mesopelagic fisheries must ensure the protection of the marine environment, adopt management measures that ensure the sustainability of the operations, and cooperate on the management of their fish stock with states and international organisations. Explicit ocean-governing legal framework rules on the mesopelagic area do not exist, and the rules protecting the marine environment are too vague to be applied to the mesopelagic zone. Although the laws mentioned in this chapter could be implicitly applied to the mesopelagic species, this will not ensure protection of the favourable conservation of the mesopelagic fish. The oceanic legal framework regime must be strengthened by mentioning the mesopelagic zone in its text. However, such wishful thinking will be met with the harsh reality of the international community’s unlikely willingness to reach a consensus on internationally recognised environmental obligations. It will be more plausible if this is done on a regional level through RFMOs and EU legislation. On such a scale, merely a small number of states' interests have to be taken into account to create an agreement. A regional approach to mention mesopelagic species will, moreover, be a more feasible option as it is uncommon to seek species-specific protection on an international level. The international legal framework regime may still introduce level, a uniform international EIA procedure necessary prior to mesopelagic fishing operations if a significant adverse impact is likely to occur.

CHAPTER 4: Strengthening Legal Frameworks to Protect Mesopelagic Species Conservation 4.1. Inroductory Remark This chapter answers the following sub-question: How can the legal frameworks be strengthened to protect mesopelagic fish conservation? This chapter begins by providing an understanding of the current challenges which hinder legal frameworks from adequately protecting the mesopelagic zone. The chapter continues by addressing the recommended course of action to strengthen the protection of mesopelagic fish and their conservation from fishing operations. The recommended course of action involves the improvement of fishing equipment and guidelines in addition to focusing on the BBNJ agreement which is currently being negotiated.

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First, the sparse amount of scientific research on the unpredictable mesopelagic zone makes the decision-making process on mesopelagic law and guidelines difficult.109 The lawmakers will likely have a conservative approach to the necessity of protecting the mesopelagic zone.

This is because of the international community’s forever unlikely willingness to bind themselves to internationally recognised environmental principles. Second, as the UNFSA only requires an EIA and management of targeted species, this ignores the interlinked food webs and consequences on non-target stock such as mesopelagic species.110 Furthermore, RFMOs’ exploratory fishing approval processes focus on bottom fishing, which does not necessarily include the mesopelagic zone.111 Consequently, it is difficult to build laws upon current fishery legal frameworks. Third, there is a lack of external stakeholder consultation in the law-making process because of limited participation in RFMOs. Only states with extractive fishing operations usually become a party to an RFMO.112 This creates a limited approach to biodiversity management. Fourth, the UNFSA imposed the obligation of state parties to cooperate regarding their mesopelagic fish stock with and through RFMOs.113 However, cooperation among different RFMOs is limited to the extent that they cannot adequately work together to respond to developing climate change issues.114 Lastly, the RMFO state parties have to be committed to conserving fish stock, but their lack of management with regards to nontarget species leaves the marine ecosystems vulnerable causing the balance of the food webs to be undervalued.115 This creates a gap in the management and conservation of ocean ecosystems and biodiversity.

109

Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 12-13.

110 ibid.

111 ibid.

112 ibid.

113 ibid.

114 James Bell and others, ‘Demersal Fishing in Areas Beyond National Jurisdiction: A Comparative Analysis of Regional Fisheries Management Organisations’ (2019) 6(596) Frontiers in Marine Science 1, 1-2.

115 Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 13.

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ISSN: 2772-9486 4.3. Recommendations for Strengthening Legal Frameworks to Protect the Mesopelagic Zone 4.3.1. Fishing Equipment The improved fishing equipment which will allow for better mesopelagic fish catch may not be sustainable in its use.116 Through adequate legislation on fishing equipment, the issue of mesopelagic bycatch in fishing operations may be avoided, which would benefit both the fisheries’ profit-maximising interests and the ocean’s biodiversity.117 Moreover, a proportional trawl design and appropriate mesh size of the netting will likely increase the capability of fishing the mesopelagic zone. Rules must be established in order to guide fishermen to use equipment sustainably. These rules can be established by the FAO because of their experience in creating fisheries guidelines. Otherwise, fishermen must be offered training focused on fishing and equipment sustainability upon registering their request to conduct commercial mesopelagic fishing operations.

4.3.2. Guidelines The Food and Agriculture Organisation has experience with creating international guidelines on the development of fisheries, such as the Code of Conduct for Responsible Fisheries (1995) and the International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (2009).118 This is evident in the preamble to International Guidelines and paragraphs 14 to 20 which state the characteristics which deep-sea fisheries must possess.119 Additionally, the FAO’s experience with creating international fisheries guidelines is evident

116

Caroline Ash, ‘A Desktop View of Overfishing’ (2004) 305 SCI 1242; Robin Craig, ‘Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas’ (2007) 20 Journal of Land Use 338, 354.

117 Boopendranath and others, ‘Final Report on CIFT Project Component on Development of Harvest and Postharvest Technologies for Utilisation of Myctophid Resources in the Arabian Sea pertaining to MoES/CMLRE Project on Assessment of Myctophid Resources in the Arabian Sea and Development of Harvest and Postharvest Technologies’ (Central Institute of Fisheries Technology, 2012) 246.

118 Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 14.

119 UN FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009) Paras 14-20.

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ISSN: 2772-9486 in Code of Conduct Article 8.120 Guidelines for exploratory mesopelagic fisheries regarding how to sustainably exploit the mesopelagic area’s biomass, which has yet to be sufficiently researched, may be provided by the Food and Agriculture Organisation. Providing this information encourages fisheries to sustainably handle the mesopelagic zone.

4.3.3. BBNJ Agreement Currently, UN state parties are negotiating the creation of a new international binding legal framework under UNCLOS. This legal instrument would focus on protecting the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ).121 It is recommended that the BBNJ agreement includes the obligation for mesopelagic fisheries to cooperate with RFMOs, the necessity for an EIA prior to the operation of commercial mesopelagic fisheries, and the designation process of an MPA for a mesopelagic area.122 4.3.3.1. Regional Fisheries Management Organizations Cooperation It is recommended that the BBNJ agreement includes principles for the conservation of the mesopelagic zone. Including rules encourages RFMOs to consider the mesopelagic species’ conservation in their fishery management measures. The BBNJ agreement should also include rules on cooperation among RFMOs and between RFMOs and external stakeholders. Current scientific research on the mesopelagic zone is scarce. However, if the RFMOs work together coherently with external stakeholders, this will allow for a wider pool of human resources and expertise available to work together on creating research and measures to protect the mesopelagic zone.123

120

UN FAO Fisheries Department Code of Conduct for Responsible Fisheries (1995) Article 8. ibid.

122 ibid.

123 ibid.

121

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ISSN: 2772-9486 4.3.3.2. Environmental Impact Assessment Lawmakers do not see enacting mesopelagic conservation law and guidelines as favourable due to a lack of scientific research on the mesopelagic zone.124 The lack of mesopelagic conservation legislative initiatives may arguably be caused by the lack of research signifying the necessity of the mesopelagic zone’s protection.

Article 206 of UNCLOS addresses that states must conduct an EIA if there are ‘reasonable grounds for believing that planned activities under their jurisdiction or control may cause (...) significant and harmful changes to the marine environment’.125 Though this article might be used to protect the mesopelagic zone from exploitative commercial fishing operations, the enforcement of this article is limited because no guidance or reporting mechanism is provided to assist states.126 As a new binding governing framework under UNCLOS, the BBNJ agreement should include the minimum guidance and standards for the implementation of an EIA to encourage the use of Article 206.

An EIA allows for an increase in research on the impact of fishing in the mesopelagic zone. This in turn creates a more abundant legal basis to strengthen legal frameworks focused on the conservation of the mesopelagic zone. It has been reported that the potential of mesopelagic fish resources has attracted ‘large-scale industrial actors outside the traditional fisheries domain are paying attention to the potential of mesopelagic fisheries’.127 Once fishery equipment and technology for mesopelagic commercial fishing has been satisfactorily improved, it can be expected that the market will try to exploit the mesopelagic biomass’ profitable potential to its fullest capacity. Article 206 can be used to encourage an EIA if there is reasonable ground to believe that unsustainable exploitation of the mesopelagic zone will cause significant and harmful changes to the marine environment. This protects the mesopelagic biodiversity and will likely cause an increase in mesopelagic scientific research.

It is recommended for the BBNJ agreement to have minimum guidance and standards on

124

Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 12-13.

125 United Nations Convention on the Law of the Sea (adopted 10 December 1982 and entered into force 16 November 1994), 1833 UNTS 397 Article 206.

126 Ronald Warner, ‘Protecting the Oceans Beyond National Jurisdiction: Strengthening the International Law Framework’ (2009) 3(24) Legal Aspects of Sustainable Development Series 244, 487-488.

127 Dag Standal and Eduardo Grimaldo, ‘Institutional nuts and bolts for a mesopelagic fishery in Norway’ (2020) 119(104043) Marine Policy 1, 2; Kristina Gjerde, Glen Wright, Carole Durussel ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 17.

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ISSN: 2772-9486 Article 206 and to explicitly support the use of Article 206 for the mesopelagic zone to avoid excluding mesopelagic fisheries. Draft Article 24 of the BBNJ, which states the threshold and criteria for an EIA, aims to provide adequate protection for the mesopelagic zone in the international legal framework regime.128 4.3.3.3. Marine Protected Area The designation process of an MPA in the BBNJ agreement would introduce an international mechanism that designates an MPA in an area beyond national jurisdiction.129 Such a provision is necessary to give the international community an opportunity to protect a vulnerable area beyond the states’ own scope of jurisdiction to protect the climate resilience of the ocean. Such a provision must include management tools to allow an MPA to function well after its designation.

4.3.4. Concluding Remarks Sustainable fishing and fishing equipment rules will strengthen the legal framework regime by protecting mesopelagic fish on a soft law level. However, the negotiable text of the BBNJ agreement is the most feasible option to adequately strengthen protection on the conservation of the mesopelagic zone and its fauna. This binding instrument can expand the current ocean governing legal framework regime focused on protecting fish in general by explicitly mentioning the applicability of the BBNJ agreement for the mesopelagic zone and its species. The BBNJ agreement should include rules on RFMO cooperation, minimum guidance and standards for the implementation of an EIA, and an MPA designation procedure.

128

Kristina Gjerde, Glen Wright, Carole Durussel, ‘Strengthening high seas governance through enhanced environmental assessment processes A case study of mesopelagic fisheries and options for a future BBNJ treaty’ (STRONG High Seas 2021) 40.

129 Glen Wright and others, ‘Fishing in the Twilight Zone: Illuminating governance challenges at the next fisheries frontier’ (IDDRI, 2020) 16.

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ISSN: 2772-9486 CONCLUSION Fish conservation must involve legal protection to prevent the overexploitation of the marine environment and its abundance of species through overfishing and bycatch. The enormous potential of mesopelagic zone commercial fisheries makes this pelagic zone attractive for fishing operations once the fishing equipment and technology has been satisfactorily perfected.

Before this further exploitation of the mesopelagic zone, more scientific research is needed to fully examine the role of the mesopelagic zone and its fauna in the preservation of the ocean’s biodiversity. Though research on the mesopelagic zone is scarce, current findings already establish the gravity of leaving the mesopelagic zone without adequate legal protection. The well-being of the oceanic ecosystem is closely interlinked, and the ocean’s interconnected food webs and carbon cycle will be significantly impacted by the overexploitation of the mesopelagic zone and its fish.

In this paper, ultimately, the answer to the necessity of strengthening the legal framework regime to protect mesopelagic species conservation from fishing operations is sought. The climate science up until now shows the necessity of the protection of mesopelagic species conservation. International legal frameworks protecting the mesopelagic fish are imperative for the survival of the entire oceanic environment, though currently very much non-existent.

Current ocean-governing frameworks do not explicitly mention the mesopelagic zone, and the general rules which protect the marine environment are too vague to apply to the mesopelagic zone. As a result, the ocean-governing legal framework regime must be strengthened to adequately protect the mesopelagic zone. On an international level, vouching in the BBNJ agreement negotiations for RFMOs cooperation, an EIA creation procedure, and an MPA designation procedure is currently the most feasible option. Improved protection will, however, mainly be adopted on an RFMO level as that is simply where the members of the international community implements species specific protection. On a regional level, rules for sustainable fishing equipment and specific guidelines on sustainable fishing in the mesopelagic zone would allow for a soft law approach to solving the problem of inadequate mesopelagic protection in the legal framework regime

. A soft law approach will be very much feasible as its adoption

will see minimum resistance by states.

This study concludes that the protection of the mesopelagic fish and their conservation from fishing operations must be strengthened in an international and/or regional legal framework. This conclusion has been realised upon examining the ocean governing legal 2022 issue 1 ILSA Law Journal

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ISSN: 2772-9486 frameworks most relevant to the mesopelagic zone. Through soft law on a regional level and the BBNJ agreement on an international level, the legal framework regime focused on fisheries can be strengthened, and, consequently, the mesopelagic fish and their conservation can be adequately protected. The favourable conservation of the mesopelagic zone is essential for the ocean food webs and carbon cycle to thrive. Legal frameworks must strengthen their protection of mesopelagic fish to avoid harmful effects on the ocean’s well-being.

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Resource Curse: The Challenge in Implementing International Environmental Legal Obligations Regarding Climate Change for a Newly Industrialized Country

By Dara Masita*

ABSTRACT Indonesia, being one of the climate superpowers, holds responsibility in mitigating its emissions. Due to the fact that Indonesia has abundant resources, however, seeks economic growth at the expense of the environment, they are coined to have the ‘resource curse’.

Nevertheless, climate change mitigation is still expected from the parties to the Paris Agreement. This article explores the question, ‘How effective is Indonesia’s implementation of international environmental legal obligations as per Article 4(2) of the Paris Agreement regarding mitigation efforts of climate change?’. Article 4(2) of the Paris Agreement requires State Parties to submit their Nationally Determined Contributions (NDCs) and pursue mitigation measures in line with their NDCs. Indonesia has conveyed its mitigation plans in their NDCs. However, its state practice is contradicting its NDCs. By exploring Indonesia’s domestic environmental framework, the nation has comprehensive environmental regulations.

Nonetheless, their enforcement measures are still lacking. Hence, it should be no surprise that Indonesia is not implementing their international environmental obligations properly.

Especially with the new and controversial Omnibus Law which deregulates several environmental regulations. By comparing Indonesia’s NDCs and its state practice, the pattern shows that they are not aligning with their climate change mitigation efforts in Article 4(2). In particular, their mitigation efforts are not enough within the forestry and energy sector.

Indonesia’s yearning for economic growth at the expense of the environment should be reevaluated. It is imperative for Indonesia to improve its implementation mechanism since climate change is a global issue and there is more to lose each day.

*

LL.B. Candidate, International and European Law Program, The Hague University of Applied Sciences.

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ISSN: 2772-9486 I.

INTRODUCTION

The call for environmental protection is of the essence in this alerting period of climate change. As the effects of climate change become increasingly prevalent day by day, it is within the responsibility of states to take action. Especially states that play a critical role in the status quo of climate change. The president of Conference of Parties 26 (COP26), Alok Sharma, referred to this archipelagic state of Indonesia as a ‘climate superpower’.1 The Republic of Indonesia is a newly industrialized country with a gross domestic product of $1.119 trillion.2 It is also the fourth most populated country with around 278,000,000 citizens.3 Additionally, it is 10th on the list of biggest carbon polluters.4 Furthermore, the abundance of natural resources in Indonesia places it as the second most biodiverse country in the world just behind Brazil.5 Indonesia’s rich forestry, maritime, and mining resources helped the nation develop. For that reason, Indonesia is considered one of the states that possess a critical role in the fight against climate change.6 Despite this, Indonesia’s rich natural resources are vulnerable to human-led destruction.

Indonesia is one of the countries suffering from the resource curse. Resource curse is a pattern where resource-rich nations have worse development outcomes compared to their counterparts that possess fewer resources.7 In the case of Indonesia, it is due to the poor governance of

1

Jayanti Nada Shofa, ‘Indonesia Can Become a Climate Superpower: UK’ (JAKARTA GLOBE, 2021) <https://jakartaglobe.id/news/indonesia-can-become-a-climate-superpoweruk#:~:text=Being%20blessed%20with%20abundant%20renewable,the%20current%20total%20energy%20dem and.> accessed 4 February 2022.

2 ‘Indonesia’ (World Bank, 2022) <https://data.worldbank.org/country/ID> accessed 4 February 2022.

3 ibid.

4 ‘Indonesia Population’ (Worldometers, 2021) <https://www.worldometers.info/world-population/indonesiapopulation/> accessed 4 February 2022.

5 ‘The Top 10 Most Biodiverse Countries’ (Mongabay, 2016) < https://news.mongabay.com/2016/05/top-10biodiversecountries/#:~:text=Brazil%20is%20the%20Earth's%20biodiversity,plant%20and%20amphibian%20species%20 counts.> accessed 4 February 2022.

6 Mukhlish Jamal Musa Holle ‘Indonesia can become a global player in the fight against climate change with these two solutions’ (The Conversation, 2021) <https://theconversation.com/indonesia-can-become-a-globalplayer-in-the-fight-against-climate-change-with-these-two-solutions170790#:~:text=Indonesia%20can%20become%20a%20significant,to%20Asia's%20largest%20tropical%20fore st.> accessed 5 February 2022.

7 PWYP Indonesia ‘Natural Resources Management (Rich Regional Resource Curse Index in Natural Resources Mineral and Coal Mining Sector in Indonesia)’ (2020) <Natural Resources Management (Rich Regional Resource Curse Index in Natural Resources Mineral and Coal Mining Sector in Indonesia)> accessed 10 February 2022.

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ISSN: 2772-9486 natural resources. An example of this is the outrageous forest fires from the slash-and-burn method in the Bornean rainforest. Farmers burn the forest to make space for palm oil plantations to increase state revenue, while simultaneously eliminating habitats and increasing carbon emissions along the way.8 As a newly industrialized country, Indonesia has ambitious economic goals. Some of which come at the expense of the environment. Indonesia is a party to international conventions and treaties regarding the protection of the environment such as the United Nations Framework Convention on Climate Change (UNFCCC). Additionally, they have ratified the Paris Agreement, the famous convention regarding climate change. In the international sphere, Indonesia pledged that it will commit to the agreements to mitigate its environmental impact as Indonesia is specifically vulnerable to climate change. Nevertheless, recent news stated that Indonesia has been acting contrary to its promises.9 This leads to the question of ‘How effective is Indonesia’s implementation of international environmental legal obligations as per Article 4(2) of the Paris Agreement regarding mitigation efforts of climate change?’. Investigating this question is essential as identifying the fault and merit in which the State operates (regarding environmental implementation measures) can contribute to a straightforward journey in achieving the international goal of mitigating climate change. This article focuses on mitigation rather than adaptation as mitigation efforts are relatively more comprehensive compared to the adaptation efforts as seen in the NDCs. By addressing the issues, reformations may be done to correct them, while pointing out successes may set examples for other states to follow. Moreover, the investigation may contribute to the researchers and the readers in helping the (international) community towards the desirable direction, towards environmental justice.

This article will explore the Paris Agreement, Indonesia’s environmental legislation, and Indonesia’s environmental practices. Article 4(2) of the Paris Agreement will serve as the standard for international legal obligations regarding climate change mitigation. The reason for this is because the Paris Agreement is the most impactful legal document about climate change

8

Rebecca Wright et al ‘Borneo is burning: How the world’s demand for palm oil is driving deforestation in Indonesia’ (CNN Edition, 2019) <https://edition.cnn.com/interactive/2019/11/asia/borneo-climate-bomb-intlhnk/> accessed 5 February 2022.

9 Heru Asprihanto ‘Environmentalist question Indonesia’s commitment to fighting climate change’ (Reuters, 2021) <https://www.reuters.com/business/cop/environmentalists-question-indonesias-commitment-fightingclimate-change-2021-11-05/> accessed 5 February 2022.

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ISSN: 2772-9486 as of date, whereas Article 4(2) focuses on domestic mitigation efforts.10 Afterwards, to comprehend Indonesia’s practices, it is important to examine its legal culture. Subsequently, this article will inspect Indonesia’s state practice regarding the environment to see the effectiveness of their environmental implementation measures. Ultimately, the answer regarding the effectiveness of Indonesia’s international environmental obligations implementation measures can be derived.

This article utilized the doctrinal research method. Studying books, scholarly articles, legislations, news articles, and official documents serves as the source of information. To ensure that the information is credible, the sources used were published no more than ten years prior. The information derived from these sources is the basis for the synthesis in arriving at a solid conclusion.

II.

PARIS AGREEMENT: BACKGROUND

A. Regarding the Paris Agreement The Paris Agreement is a treaty under international law as defined under Article 2 of the 1969 Vienna Convention on the Law of Treaties.11 Indonesia ratified the agreement on 31 October 2016.12 This means that Indonesia is bound by the words of the Paris Agreement.

Accordingly, this treaty is a landmark agreement regarding climate change. It differs from previous climate change treaties such as the Kyoto Protocol, as it does not impose quantified emissions targets.13 The Paris Agreement contains procedural provisions that were not included in previous conventions, such as the emphasis on NDCs and financial aid. However, like other environmental treaties, the wording tends to be vague and the provisions are not necessarily enforceable.14

10

Melissa Denchak ‘Paris Climate Agreement: Everything You Need to Know’ (NRDC, 2021) <https://www.nrdc.org/stories/paris-climate-agreement-everything-you-need-know#sec-important> 7 February 2022.

11 Daniel Bodansky, 'The Legal Character of the Paris Agreement' (2016) 25 Rev Eur Comp & Int'l Envtl L 143.

12 ‘Indonesia’ (United Nations Climate Change) < https://unfccc.int/node/61083> accessed 4 February 2022.

13 Phillipe Sands and Jacqueline Peel, Principles of International Environmental Law (4th edn, Cambridge University Press 2018) 322.

14 Dina Kassab and Chahir Zaki ‘Agree to Disagree? Making Sense of Vagueness in International Environmental Agreements’ (Economic Research Forum, 2020) Economic Research Forum Working

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The lax wording used in the Paris Agreement does not generate a compliance pull as not every provision in the treaty constitutes a legal obligation. The UNFCCC and its parties chose not to make the whole treaty filled with legal obligations. It is possible to see different types of provisions besides a legal obligation in the treaty, such as recommendations or factual observation. This is because states are more wary of entering into legal obligations treaty rather than political ones, as the former impose greater constraints on states’ behavior.15 However, the Paris Agreement provides a transparency and accountability provision which is intended to increase compliance. This means counter-productivity from a state will be noticed and criticized.

The Paris Agreement revolves around three main purposes as laid down in Article 2 of the agreement: mitigation, adaptation, and financial flows.16 Particularly for this article, there will be great emphasis on examining the mitigation aspect as it is the most descriptive of the agreement.

The mitigation aspect of the treaty can be found in Article 4, in which nations are guided on what they can do in order to maintain a global temperature increase of below 2˚C. Furthermore, this Article mandates State Parties to submit their Nationally Determined Contributions (NDCs) every five years. The principle of NDCs is thereby the main technique used to meet the agreement’s objectives.17 The NDC of a State Party includes the nations’ plans on mitigation, adaptation, transparency, and so forth. Therefore, the NDC of Indonesia will be the point of reference for its international environmental obligation.

Paper No. 1405 <https://erf.org.eg/app/uploads/2020/10/1601923927_708_467367_1405.pdf> accessed 15 February 2022.

15 (n 5) Bodansky 145.

16 Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) U.N. Doc. FCCC/CP/2015/L.9/Rev/1 art 2.

17 Sands and Peel (9) 321.

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ISSN: 2772-9486 1.

Article 4(2) of the Paris Agreement as the Legal Standard

Treaties generally have different types of provisions: obligations, recommendations, factual observation and so on.18 To distinguish the type of provision, it is possible to look at the verb contained in the provision. With this, using the verb ‘shall’ denotes that the provision is a legal obligation.19 On the contrary, if the provision utilizes the verbs of ‘should’ or ‘encourage’, the provision is a recommendation.20 Since this article revolves around international environmental obligations, it is necessary to understand the wording of the Paris Agreement to distinguish whether a provision is a legal obligation or the contrary.

For this article, Article 4(2) of the Paris Agreement serves as the legal standard of the research question. Article 4(2) states, ‘Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.’21 This Article can be divided into two parts, the first and second sentence.

The first sentence contains the verb ‘shall’ constituting that this particular provision is a legal obligation. This Article contains the procedural obligations which require states to ‘prepare, communicate and maintain successive nationally determined contributions that it intends to achieve’.22 Thus, the purpose of this sentence is to oblige States Parties, when submitting their nationally determined contributions, to describe the measures they are taking to combat climate change. Meanwhile, the second sentence also contains the verb ‘shall’ which makes it another legal obligation. In this sentence, the Agreement obliges states to ‘pursue domestic measures23’ and add after the comma, ‘with the aim of achieving the objectives of such contributions’.24 With this, it draws a connection between the pursuit of domestic measures by the Parties and their NDCs.25 The essence of this second sentence is that states should pursue domestic measures in line with the outlined plan in their NDC.

18

(n 5) Bodansky 145. ibid.

20 ibid.

21 Paris Agreement art 4(2).

22 Paris Agreement art 4(2).

23 Paris Agreement art 4(2).

24 Paris Agreement art 4(2).

25 ibid 146.

19

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In order to apply the provision to this journal article, Indonesia’s NDCs will be examined, as it embodies the first sentence of Article 4(2). While Indonesia’s state practice, which includes its domestic measures, will be the representation of the second sentence of the Article.

In breaking down the provision, and assigning each sentence (of the provision) to their respective counterparts, it is clearer to tackle the research question. Therefore, by comparing Indonesia’s NDC to their state practice, it is possible to see whether Indonesia adheres to the essence of Article 4(2) which serves as the standard of their effectiveness in implementing international environmental obligations.

2. Indonesia’s NDCs: The Basis in Comparing to its Environmental State Practice To give a background of Indonesia in the climate change scene: Indonesia is a non-annex I country due to its geographical conditions. Two-thirds of Indonesia’s territory is covered by water.26 As an archipelago, there are small islands and with 60% of the population living at the coast, are vulnerable to the effects of climate change, namely rising sea levels.27 On the more arid regions of Indonesia, the islands are susceptible to droughts and wildfires.28 Whereas areas experiencing heavy rainfall would most likely flood due to the lack of drainage. This is due to a lack of solid infrastructure and poor distribution of wealth across the nation, making it a challenge for citizens to adapt to the changing conditions.

With that being said, Indonesia has high stakes of vulnerability if more changes in the climate were to occur. Hence, Indonesia is expected to have strong implementation measures of international environmental obligations. Especially, regarding the mitigation of climate

26

‘Facts and Figures’ (Sekretariat Kabinet Republik Indonesia, 2022) <https://setkab.go.id/indonesias-maritimefulcrum-and-tourismchallenges/#:~:text=Indonesia%20has%20total%20area%20of,the%20length%20of%2054%2C716%20km.> accessed 8 February 2022.

27 Rudiarto I and Handayani W, ‘A Regional Perspective on Urbanization and Climate-Related Disasters in the Northern Coastal Region of Central Java, Indonesia’ (2018) 7 Land 34 <http://dx.doi.org/10.3390/land7010034> accessed 8 February 2022.

28 ‘BMKG Ingatkan Daerah Diprediksi Alami Kekeringan Waspada Kebakaran Hutan’ (Merdeka, 2021) <https://www.merdeka.com/peristiwa/bmkg-ingatkan-daerah-diprediksi-alami-kekeringan-waspada-kebakaranhutan.html> accessed 8 February 2022.

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ISSN: 2772-9486 change, as they are a globally significant polluter. So far, Indonesia has submitted its NDCs for the international community to be informed of their plans, making them one of the 11 countries that have submitted two NDCs (for 2016 and 2021).29 Therefore, analyzing its NDCs illustrates a picture of what to expect from Indonesia.

Indonesia’s NDC highlights Indonesia’s mitigation and adaptation efforts. The emission data from the first Biennial Update Report (BUR) shows that the national greenhouse gas (GHG) emissions were at 1.453 GtCO2e in 2012.30 The emissions are mainly caused by peatland fire (47.8%) and energy (34.9%).31However, the second BUR in 2016 showed that national emissions were at 1.457 GtCO2e, while peatland fire constituted 43.59% and energy 36.9% of the emissions.32 Due to these numbers, Indonesia set an unconditional target of reducing 29% of emissions, and a conditional target (with the help of the international community) of reducing 41% of emissions by 2030.33 This reduction target was set in the first NDC in 2016. At that time, the carbon emissions were at 2.14 tCO2e.34 Furthermore, in 2019 emissions peaked at 2.44 tCO2e, and by 2020 they went down to 2.16 tCO2e. This recent decrease in emission was most likely due to the stagnant productivity caused by the coronavirus pandemic. Nonetheless, this data shows there is still an increasing trend in emissions.

In the forestry sector, Indonesia expects 20 million hectares of peatland restorations and 12 mill hectares of degraded land rehabilitation by 2030.35 Meanwhile, the Reducing Emissions from Deforestation and Forest Degradation (REDD+) program created by the UNFCCC, in which Indonesia is a pioneer, is considered to be an important component of the NDC for the

29

‘Nationally Determined Contributions (NDCs)’ (United Nations Climate Change) <https://unfccc.int/processand-meetings/the-paris-agreement/nationally-determined-contributions-ndcs/nationally-determinedcontributions-ndcs> accessed 4 February 2022.

30 ‘First Nationally Determined Contribution Republic of Indonesia’ (2016) <https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Indonesia%20First/First%20NDC%20Indonesi a_submitted%20to%20UNFCCC%20Set_November%20%202016.pdf> accessed 4 February 2022, 6.

31 ibid.

32 ibid.

33 ibid.

34 Global Carbon Project ‘Indonesia: CO2 Country Profile’ (Our World in Data, 2021) < https://ourworldindata.org/co2/country/indonesia> accessed 5 February 2022.

35 ‘Updated Nationally Determined Contribution Republic of Indonesia’ (United Nations Climate Change, 2021) <https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Indonesia%20First/Updated%20NDC%20Indo nesia%202021%20-%20corrected%20version.pdf> accessed 5 February 2022.

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ISSN: 2772-9486 land-use sector.36 Indonesia’s Forest Reference Emission Level (FREL) for REDD+ was submitted to the UNFCCC in December 2015. The government proposed a rate of 0.568 GtCO2e yr-1 from its forest rehabilitation.37 In regards to the energy sector, Indonesia is keen on developing clean energy resources in the form of a national policy directive.38 Government Regulation No. 79/2014 on National Energy Policy laid down the following goals for 2025 and 2050 for the composition of the energy mix: a) New and renewable energy at least 23% in 2025 at least 31% in 2050 b) Oil should be less than 25% in 2025 and less than 20% in 2050 c) Coal should be a minimum of 30% in 2025 and a minimum 25% in 2050 d) Gas should be a minimum 22% (2025) and a minimum 24% in 2050.

In the waste management sector, the Indonesian government is committed to improving policy and institutional capacity at the local level. The government is eager to promote the ‘Reduce, Reuse, Recycle’ approach and also the transforming waste and garbage into energy programs.39 These points of the NDCs are motivating and ambitious. Indonesia is a large nation with a lot of environmental potentials. Successful mitigation of this scale will impact the environmental scene of the world. With that being said, these ambitions have to be compared with the acts of the state. The purpose of the comparison is to deduct whether Indonesia is indeed implementing these planned mitigation programs.

B. The Roots of Indonesia’s Environmental Legal Framework In addition to the NDC, Indonesia’s environmental legal framework should be examined.

This is because it is important to understand Indonesia’s legal culture concerning the

36

ibid. ibid.

38 ibid.

39 ibid.

37

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ISSN: 2772-9486 environment in order to understand Indonesia’s approach towards their implementation of international environmental obligations.

The basis of Indonesia’s environmental law stems from the Indonesian Constitution. Article 33(3) of the Constitution states that, “Land and water and the natural resources contained therein shall be controlled by the State and be utilized for the greatest welfare of the people.”40 This Article shows that Indonesia adopted an anthropocentric view towards the environment, stressing the importance of the environment in benefitting the people. Specifically, the state’s approach towards natural resource management is to increase the economic growth development to enhance state revenue since the 1960s.41 Consequently, the Indonesian government sees the environment more as an economic system, rather than an ecological one.

1. Introduction Regarding the Indonesia’s Domestic Environmental Legislations Indonesia’s first comprehensive environmental legislation is the Human Environment Management Act of 1997.42 This legislation has been influenced by the Stockholm Declaration, where the environmental justice system and the principle of enforcement were introduced.43 This act introduced compliance and sanction mechanisms to ensure enforcement. Moreover, this Act led to the development of the most significant environmental law in the country, Law No. 32/2009 regarding environmental protection and management. This legislation states that everyone has the same right to a healthy environment, but everyone also bears two obligations: to maintain the environmental function and sustainability and to prevent and resolve environmental pollution and destruction.44 Furthermore, the legislation also specifies the need for businesses or any person who conducts activities, to have permits when undergoing activities in the natural scene.45 This also includes the requirement of a mandatory environmental impact assessment (EIA) before businesses may conduct any activity. Chapter

40

Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 (The Indonesian Constitution), art 33(3).

Stenly ‘The Effect of Natural Resource Abundance on Economic Growth: Case of Indonesia’ (Erasmus University Thesis Repository, 2015) <https://thesis.eur.nl/pub/33405> accessed 3 May 2022, 2.

42 Undang-Undang No. 32 Tahun 1997 tentang Pengelolaan Lingkungan Hidup (Law on Environmental Management).

43 United Nations Conference on the Human Environment (Stockholm Declaration) (1972).

44 Undang-Undang No. 32 Tahun 2009 tentang Perlindungan dan Pengelolaan Lingkungan Hidup (Law No. 32/2009), art 1(2).

45 ibid, art 1(35).

41

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ISSN: 2772-9486 XII of the legislation specifies the legal sanctions that are imposed on those who pollute the environment.46 These sanctions range from prison sentences to fines depending on the severity of the act.

Another environmental legislation is Law No. 31/2009 regarding meteorology, climatology, and geophysics. Chapter X of this legislation concerns climate change. Article 65(1) of the legislation states that the government shall conduct mitigation and adaptation measures to fight climate change.47 Furthermore, Article 65(2) elaborates on supporting mitigation and adaptation efforts through planning, strategizing, and coordinating activities on the handling of climate change, and the implementation of monitoring and evaluation regarding the impacts of climate change.48 Even so, this legislation is very limited on the environmental aspect is not as comprehensive as Law No. 32/2009, which is why this article will focus on Law No. 32/2009 as the basis for the domestic environmental legislation.

Law No. 32/2009 is progressive in the Indonesian environmental scene. Unfortunately, due to Indonesia’s desire for economic prosperity, the government does not attempt to enforce the obligation to preserve environmental sustainability.49 Indonesia encounters difficulties in the environmental enforcement field. The difficulties in enforcement are rooted in the lack of resource allocation for proper enforcement measures.

An example of this can be taken from Sidoarjo, a region in East Java. Sidoarjo is an industrial area, and scientists noted environmental degradation in the area due to industrial pollution.50 Law No. 32/2009 stresses the requirement of permits and use of EIAs by businesses in order not to pollute the environment.51 One major issue is the fact that the EIA system is defective. After companies have completed their EIA and obtained their license or permit, the

46

ibid, chapter XII. Undang-Undang No. 31 Tahun 2009 tentang Meteorologi, Klimatologi, dan Geofisika (Law No. 31/2009), art 65(1).

48 ibid art 65(2).

49 Ismu Gunadi Widodo, J. Andy Hartanto, Eddy Pranjoto W. and Jonaedi Efendi ‘Contraints on Enforcement of Environmental Law Against Corporate Defendants’ (2019) 49/1 Environmental Policy and Law 76, 77.

50 Suparno 'Sungai di Sidoarjo Dipenuhi Busa, Dinas Lingkungan Hidup Ambil Sample Air’ (detiknews, 2020) <https://news.detik.com/berita-jawa-timur/d-4864403/sungai-di-sidoarjo-dipenuhi-busa-dinas-lingkunganhidup-ambil-sample-air> 5 February 2022.

51 Law No. 32/2009 art 36(1).

47

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ISSN: 2772-9486 government does not check environmental conditions.52 Secondly, there is a lack of human resources allocated in Sidoarjo to monitor companies’ compliance with environmental regulations.53 Thirdly, the number of law enforcement officials is limited and they are not competent enough to deal with environmental crimes.54 A local citizen of the area said that investigators are less observant and careful in conducting investigations of environmental crimes, and they do not understand the norms that apply to environmental cases.55 Other faults are the absence or limitation of facilities to support environmental enforcement, lax environmental licensing, the lack of community participation, and corruption. All these factors make Indonesia’s domestic environmental scene highly vulnerable.

2. An environmental threat: the Omnibus Law On 5 October 2020, Indonesia’s People’s Representative Council (DPR) passed the Omnibus Law on Job Creation.56 This law faced massive backlashes and took students, workers, and religious conservatives to the streets. It also received criticism from experts and 35 global investors.57 The purpose of this law is to boost economic revenue at the expense of the social and environmental setting of the nation. There was a series of deregulations regarding environmental protection. Thirty Articles under Law No. 32/2009 were amended, 17 were removed, and one Article was added.58 This leads Indonesia’s already vulnerable resources to become even more vulnerable. Due to the lex posterior principle, this controversial law will prevail over previous environmental legislation.

There are two striking points regarding environmental protection in the Omnibus Law. The first one is the removal of environmental impact assessment, referred to as Amdal in the

52

Widodo et al 81. ibid.

54 ibid.

55 ibid.

56 Draft Bill on Job Creation (2020) (Omnibus Law).

57 Hans Nicholas Jong ‘Indonesia’s omnibus law a ‘major problem’ for environmental protection’ (Mongabay, 2020) < https://news.mongabay.com/2020/11/indonesia-omnibus-law-global-investor-letter/> accessed 2 February 2022.

58 Indonesian Center for Environmental Law ‘Degradation of Environmental Protection Management Instruments under Draft Bill on Job Creation’ (Indonesian Center for Environmental Law, 2020) <https://icel.or.id/wp-content/uploads/DEGRADATION-OF-ENVIRONMENTAL-PROTECTION-ANDMANAGEMENT-INSTRUMENTS-UNDER-DRAFT-BILL-ON-JOB-CREATION-.-REV.YF_.pdf> accessed 6 February 2022, 1.

53

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ISSN: 2772-9486 Indonesian acronym. Article 36 of Law No. 32/2009 requires businesses to have this Amdal.59However, Article 32(14) of the Omnibus Law states that “Requirements of Article 36 (of Law No. 32/2009) are erased”.60 This sounds problematic for the environment, but the Minister of the Environment and Forestry, Ms. Siti Nurbaya Bakar argued that integrating Amdal within the business permits (rather than having it separately) would strengthen environmental protection.61 This integration means that a business will risk its whole working permit rather than just the environmental permit when there is an environmental concern. This law also intends to remove the Amdal commission which consists of the affected communities, environmental experts, and activists.62 In reality, by removing the Amdal commission and integrating it within the central government will produce Amdals of lesser quality.63 This is because public participation plays a key role in the Amdal process, by removing it, the new Amdals will not reflect the local community’s values.

The second point is the diminishing possibilities for public participation. Article 26 of Law No. 32/200964 covers public participation during the Amdal process.65 However, Omnibus Law Article 26 narrows the limit of public participation for the Amdal process. This limitation only makes it possible for those who are directly impacted by the companies’ conduct to speak up for the Amdal. This excludes environmental groups or the general community. Ms. Bakar reasoned this limitation by saying that, ‘The interests of the locals have often been diluted by indirect outside interests.’66 In fact, this has never been the case since the government itself does not provide adequate access to information about the environment, thus NGOs are normally the ones reaching out to the affected communities. For instance, the high-profile case of Kendeng in Central Java against a cement factory embodies the need for public participation.

In this case, local farmers only challenged the project’s environmental permit when activists reached out. The activists had to inform them of the damage that the cement factory would cause which includes health problems, decrease in clean water, and destruction in the flora and

59

Law No. 32/2009 art 36.

Omnibus Law, art 32(14).

61 ‘Siti Nurbaya Jawab Tuduhan Investor Global Soal Amdal Omnibus’ (CNN Indonesia, 2020) <https://www.cnnindonesia.com/nasional/20201017191534-20-559623/siti-nurbaya-jawab-tuduhan-investorglobal-soal-amdal-omnibus> accessed 7 February 2022.

62 (n 57) Jong ‘Indonesia’s omnibus law a ‘major problem’ for environmental protection’.

63 ibid.

64 Law No. 32/2009 art 36.

65 Law No. 32/2009 art 36.

66 (n 57) Jong ‘Indonesia’s omnibus law a ‘major problem’ for environmental protection’.

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ISSN: 2772-9486 fauna.67 This shows that the new Omnibus legislation makes it easier for businesses to function at the expense of the environment.

Overall, Indonesia’s Law No. 32/2009 is relatively comprehensive and progressive.68 However, without strict enforcement, it will not be effective. On top of that, the passing of the Omnibus Law for the purpose of economic growth is highly problematic for the environment.

This problem is endorsed by the 35 global investors (based in England, the Netherlands, Japan, and other countries) who have expressed their concerns regarding the environmental repercussions of the job creation bill.69 The global investors are worried that this rollback of regulations will jeopardize their global efforts to mitigate climate change in the Paris Agreement as Indonesia is a climate superpower.70 C. Examination of State Practice The second sentence of Article 4(2) of the Paris Agreement states that “ (…) Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contribution.”71 Thus, it should be expected—pacta sunt servanda—that Indonesia pursues climate mitigation action. Society can identify whether a state has effectively implemented climate mitigation measures on the basis of whether (i) the state’s practice is in line with the state’s NDCs, and whether (ii) the state’s acts do not encourage environmental degradation (i.e increased emission, deforestation, and others). Therefore, Indonesia’s state practice should be compared to its NDCs.

67

Prischa Listiningrum and Rizqi Bachtiat ‘The Emergence of Access to Environmental Justice in Indonesia (A Case Study on Mining for Cement in Kendeng Mountains)’ (2018) 59 Advances in Economics, Business and Management Research: International Conference on Energy and Mining Law 236, 238.

68 Law No. 32/2009.

69 Matthew Green ‘Global investors warn Indonesia that jobs bill puts forests at risk’ (Reuters, 2020) <https://www.reuters.com/article/us-indonesia-economy-law-investors-idUSKBN26Q1GZ> accessed 5 February 2022.

70 (n 57) Jong ‘Indonesia’s omnibus law a ‘major problem’ for environmental protection’.

71 (n 9) Paris Agreement art 4(2).

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ISSN: 2772-9486 1. Forestry Sector In the forestry sector, it was explained above that Indonesia aims to restore 20 million ha of peatlands and rehabilitate 12 mill ha of degraded land by 2030. Regarding the peatlands, there is progress by Indonesia. In 2016, the government formed the Restoration of Peatlands and Mangroves (BRGM) to achieve this goal from their NDC. The BRGM has so far restored 300,000 ha of peatlands across the archipelago.72 Indonesia aims to restore 1.2 million ha by 2024.73 This is promising news as peatlands help contain water to prevent floods and at the same time constitute important carbon reducers.

Unfortunately, the news is not as promising regarding the forests. Indonesia is one of the biggest palm oil producers, which means that natural forests are burned down to make space for palm plantations. The year 2021 represents the end of Indonesia’s Palm Oil Moratorium (Moratorium Sawit). This moratorium bans the government from issuing new licenses for palm oil plantations. The idea behind this is to preserve forest biodiversity as Indonesia’s slash-andburn method for providing new land for palm plantations caused a massive haze that affected the whole of Southeast Asia.74 The controversy in this issue is that the government has not called to renew the moratorium. The Omnibus Law contributes to the weakening of its reevaluation. This ultimately led to activists and environmental groups speaking up about the lack of commitment by the government to renew the moratorium. It should also be noted that in the 2016 NDC, Indonesia included in its mitigation section “(…)instituting a moratorium on the clearing of primary forests and by prohibiting conversion of its remaining forests by reducing deforestation and forest degradation (...)”.75 However, in the 2021 NDC, Indonesia did not include the aim of issuing moratoriums for the forest in the mitigation section. There is only very little difference between the 2016 and 2021 NDC in the mitigation section, the 2021 NDC simply has more scientific updates on it. However, the government chose to move the moratorium paragraph to its General Policy section. This nuanced alteration symbolizes that the government is not fixed on the idea of renewing the moratorium yet.

72

Betty Herlina ‘Minilik Kembali Komitment Restorasi Lahan Gambut oleh Pemerintah’ (dw, 2022) <https://www.dw.com/id/sejauh-mana-implementasi-restorasi-lahan-gambut/a-60626545> 6 February 2022.

73 ibid.

74 The Oil Palm ‘Inconvenient Truth about Palm Oil’s Role in the Haze’ (The Oil Palm, 2019) < https://theoilpalm.org/inconvenient-truth-about-palm-oils-role-in-the-haze/> accessed 6 February 2022.

75 (n 30) Indonesia’s NDC (2016) 2.

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Furthermore, concerning lax environmental enforcement, the Moratorium Sawit also suffers from poor implementation. There are coordination problems in the government ministries and agencies, and in the local governments concerning the implementation of regulations. This poor enforcement is due to similar set of problems, namely lack of competent human resources to enforce environmental obligations, as specified before (in section II(B)(1)).

In other news, Indonesian Minister of Environment and Forestry Ms. Bakar, stated that forest fires have gone down to 82% in 2020.76 However, Ms. Bakar is a controversial figure as the Minister of the Environment and Forestry.77 Her pro-development stance on the environment makes it difficult for citizens to be convinced of her words. On 3 November 2021, in the midst of COP26, she tweeted, “The massive development of President Jokowi’s era must not be stopped in the name of carbon emissions or deforestation.”78 This statement was widely criticized by the environmental community, as Ms. Bakar seems to be more pro-building rather than pro-environment. This statement from the Minister shows that deforestation will still be conducted in Indonesia because Indonesia has not achieved the state of development that it aspires to. In her Twitter thread, Ms. Bakar explained that developing natural resources for the people’s welfare is enshrined in Indonesia’s Constitution.79 She argued that zero deforestation in Indonesia by 2030 is neither right nor fair.80 An example she gave to support her argument was that there are roads in Borneo and Sumatra that are disturbed because they are crossing a

76

‘Siti Nurbaya Usai Kritik Deforestasi: Pembangunan Harus Seimbang’ (CNN Indonesia, 2021) < https://www.cnnindonesia.com/nasional/20211105155729-20-717229/siti-nurbaya-usai-kritik-deforestasipembangunan-harus-seimbang> accessed 6 February 2022.

77 Dian Erika Nugraheny ‘Kontroversi Pernyataan Menteri LHK soal Pembangunan dan Deforestasi’ (Twitter, 2021) <https://nasional.kompas.com/read/2021/11/05/06255601/kontroversi-pernyataan-menteri-lhk-soalpembangunan-dan-deforestasi?page=all> accessed 6 February 2022.

78 @SitiNurbayaLHK ‘Pembangunan besar-besaran era Presiden Jokowi tidak boleh berhenti atas nama emisi karbon atau atas nama deforestasi.’ (Twitter, 2021) <https://twitter.com/sitinurbayalhk/status/1455762628035289090> accessed 6 February 2022.

79 @SitiNurbayaLHK ‘Menghentikan pembangunan atas nama zero deforestation sama dengan melawan mandat UUD 1945 untuk values and goals establishment, membangun sasaran nasional untuk kesejahteraan rakyat secara sosial dan ekonomi.’ (Twitter, 2021) <https://twitter.com/SitiNurbayaLHK/status/1455762634179952640> accessed 6 February 2022.

80 @SitiNurbayaLHK ‘Memaksa Indonesia untuk zero deforestation di 2030, jelas tidak tepat dan tidak adil.

Karena setiap negara memiliki masalah-masalah kunci sendiri dan dinaungi Undang-Undang Dasar untuk melindungi rakyatnya.’ (Twitter, 2021) <https://twitter.com/SitiNurbayaLHK/status/1455764406088830979> accessed 6 February 2022.

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ISSN: 2772-9486 forest area.81 Due to this, citizens are worried that her pro-development stance will just serve the corporations’ purposes. Additionally, just because the deadline is in eight years, does not mean that deforestation is justified and right today. Instead of constructing her Twitter thread regarding deforestation in a deterring language, Ms. Bakar formulates it in a way that suggests that deforestation is inevitable. With this attitude from the Minister, corporations will have the same mindset as ‘deforestation is inevitable for economic development’ since it also benefits them. As the Minister of the Environment and Forestry—the forefront and incarnation of Indonesia’s environmental policy—a more ecocentric view is needed to protect the environment and pursue the goals of Indonesia’s NDC. 2. Energy Sector In the energy sector, Indonesia has not been as progressive in switching to renewable energy as it is one of the biggest producers and consumers of coal. In the following COP26, Indonesia agreed to phase out coal by 2040. In COP26, Indonesia also signed a new green energy transition statement, the ‘Global Coal to Clean Power Transition Statement’.82 The agreement includes the retirement of 9.2 gigawatts of coal-fired power plants. However, this move is counterproductive in light of the national plan of Rencana Usaha Penyediaan Tenaga Listrik (RUPTL) (Plan for Electricity Provision), which calls for the increase of 40.6 gigawatts of energy from 2021 to 2030, with one-third of it being derived from coal.83 Hence, 13.8 gigawatts will come from coal. If the government decommissions 9.2 gigawatts of coal power plants tand hen proceeds to add 13.8 gigawatts of electricity from coal power plants, it blocks the effort in achieving net-zero emissions by 2050.

In the Omnibus Law and Law No. 3/2020 regarding mineral and coal mining (Minerba), several clauses benefit the non-renewable energy sector. The fact that some of the figures in

81

@SitiNurbayaLHK ‘Kalau konsepnya tidak ada deforestasi, berarti tidak boleh ada jalan, lalu bagaimana dengan masyarakatnya, apakah mereka harus terisolasi? Sementara negara harus benar-benar hadir di tengah rakyatnya.’ (Twitter, 2021) <https://twitter.com/SitiNurbayaLHK/status/1455764409909866497> accessed 6 February 2022.

82 ‘Global Coal to Clean Power Transition Statement’ (UN Climate Change Conference UK 2021, 2021) <https://ukcop26.org/global-coal-to-clean-power-transition-statement/> accessed 4 February 2022.

83 ‘National Electricity Business Plan (RUPTL 2021-2030’ (2021) <https://gatrik.esdm.go.id/assets/uploads/download_index/files/38622-ruptl-pln-2021-2030.pdf> accessed 6 February 2022.

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ISSN: 2772-9486 the People’s Representative Council (Indonesian legislative body) who drafted the law are tied to this coal sector, served as a bias in the creation of the law. Article 39 of the Omnibus Law (Minerba Law Article 162) specifies that anyone who disrupts the activities of mining businesses with IUP, IUPK, IPR, or SIPB (these are mining permits) holders will be subjected to a maximum of one year in prison or a maximum fee of Rp. 100 million (around €6114).84 Furthermore, Article 39 of the Omnibus Law [Minerba Law Article 128A(2)] allows coal companies to pay 0% royalties. Without paying royalties to the government, these coal companies do not contribute to state revenue. This allows the companies to exploit more of Indonesia’s resources and pollute their surroundings and at the same time make more profits.

By easing these regulations, Indonesia may derail the efforts made to switch to renewable energy.

Regarding renewable energy, Indonesia is still in its experimental stage. There is a lot of renewable energy potential in Indonesia, but the government has not explored this potential yet. So far private companies have been the ones progressively exploring renewable energy.

Nevertheless, Indonesia is still dominated by non-renewable energy.85 On top of that, several new coal plants are expected to surface in the upcoming years. Even though there is a lot of public criticism, the government proceeds with the plans.86 This is illustrated in the case of Celukan Bawang which is a region in Bali. A large coal plant is about to be constructed in Celukan Bawang. The local government issued an environmental permit to the developer, however, the latter did not acquire the consent of the local community. The permit did not include detailed assessments on the impact of the project on the environment, the health of residents, their livelihoods, and climate change.87 In turn, the court rejected the lawsuit launched by the locals of Celukan Bawang against the local government. The Amici Curiae brief regarding this conflict specifies the number of items pointing out Bali’s governor’s

84

Omnibus Law art 39.

International Energy Agency ‘Scaling up renewables in the Java-Bali power system: A case study’ (IEA, 2022) <https://www.iea.org/articles/scaling-up-renewables-in-the-java-bali-power-system-a-case-study> accessed 6 February 2022.

86 Hans Nicholas Jong ‘Indonesia’s coal phaseout is just more business as usual, report says’ (Mongabay, 2021) <https://news.mongabay.com/2021/08/indonesias-coal-phaseout-is-just-more-business-as-usual-report-says/> accessed 6 February 2022.

87 Jong ‘Indonesia’s omnibus law a ‘major problem’ for environmental protection’.

85

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ISSN: 2772-9486 neglect. The brief states that the Amdal88 for the plant fails to apply the principles of Law No. 32/2009, and international climate commitments.89 The violation of the national environmental legislation and international commitments shows a recurring pattern of prioritizing economic prosperity over environmental protection.

3. Waste Management Sector In the waste management sector, Indonesia’s progress in reducing landfill waste by promoting the ‘Reduce, Reuse, Recycle’ (3R) and ‘Waste to Energy’ (WTE) approach is improving. In 2019, Indonesia was able to reduce, reuse, and recycle 14.58% of its waste, while 34.6% were managed (dumped in landfills or incinerated).90 Whereas in 2020, the 3R approach increased to 16.23% and still the same number of 34.6% in waste management.91 Furthermore, the Governor of West Java decided that all waste must be turned into energy and is constructing a facility that will turn waste to energy.92 This is beneficial for the environment and economy, as a study shows that if 12.37% of municipal solid waste goes to the WTE program, the program is able to create 1,229.695 gigawatts of energy.93 This can save 1,809,208.2 tons of CO2 emission and save the cost of purchasing non-renewable energy.94 In the newest data from the Ministry of Environment and Forestry, there were 22,728,880 tons of waste in 2021.95 With this, there has been 14.6% in waste reduction in 2021, 49.64% were handled, 64.24% were processed, and there is 35.76% of waste that was not processed.96 The waste sector is the most

88

Indonesia’s environmental impact assessment acronym.

Amici Curiae Brief: State Administrative Lawsuit on Cancellation of Bali’s Governor Decree No.660.3 / 3985 / IV-A / DISPMPT About Environmental Permit Development of Steam Power Plant (PLTU) given to PT. PLTU CELUKAN BAWANG ON THE VILLAGE ON THE SUPPORT OF GEROKGAK DISTRICT, REGENCY OF BULELENG (Indonesian Center for Environmental Law, 2018) <https://icel.or.id/wpcontent/uploads/CCIA-Amicus-Kasus-No-2GLH2018PTUN.DPS-FINAL-EN-1.pdf> accessed 5 February 2022, 2.

90 ‘Indonesia’s waste management sector still going strong’ (Indonesien, 2021) <https://indonesien.ahk.de/id/infocenter/berita/berita/indonesias-waste-management-sector-still-going-strong> accessed 7 February 2022.

91 ibid.

92 ibid.

93 Farizal Farizal, Radityo Aji, Amar Rachman and Nasruddin Nasruddin, ‘Indonesia’s Municipal Solid Waste 3R and Waste to Energy Programs’ (2017) 21 Makara Journal of Technology 158 <https://scholarhub.ui.ac.id/cgi/viewcontent.cgi?article=1339&context=mjt> accessed 7 February 2022.

94 ibid.

95 ‘Sistem Informasi Pengelolaan Sampah Nasional’ (Sistem Informasi Pengelolaan Sampah Nasional, 2021) <https://sipsn.menlhk.go.id/sipsn/#> accessed 7 February 2022.

96 ibid.

89

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ISSN: 2772-9486 progressive sector in Indonesia, as a lot of businesses are chiming into the trend of waste management. Additionally, Indonesian education and NGOs are more aware and active in this sector compared to other areas of concern.

D. Analysis: Comparing Indonesia’s NDCs with its State Practice By aligning Indonesia’s state practice with its NDC, the effectiveness in the implementation of international environmental obligations can be seen. There are several faults within the government’s approach that can be pinpointed. The most pertinent one is the recurring concept of prioritizing economic activity rather than environmental protection. Which leads to substandard environmental enforcement at the local level, even with comprehensive domestic legislation available. Nonetheless, the government strikes hardest with the passing of the Omnibus Law. The deregulation of environmental protection makes it more difficult for Indonesia to commit to international environmental obligations. It has even received global concern that the law might violate Indonesia’s commitments made under the Paris Agreement.

As seen in the forestry sector, the Moratorium Sawit has not been renewed. Even with the moratorium still in place, due to the lack of governmental coordination there is implementation of the moratorium. Additionally, the Minister of the Environment and Forestry is prodevelopment in the forested area. This has a negative connotation seeing that the minister is the one responsible for protecting the environment because most cultural change comes from the top. The encouraging news is that deforestation was not as detrimental as the pre-Paris era and the peatland restorations are adequately increasing as promised. Nevertheless, Indonesia’s NDC for the forestry sector prioritizes reducing emissions from deforestation. Due to the fact that the Moratorium Sawit has not been renewed, the easing environmental regulation from the Omnibus Law, and Ms. Bakar’s remarks; it does not seem as if Indonesia has properly implemented their international environmental obligations in the forestry sector.

In the energy sector, due to Indonesia’s coal dependence, it is remarkably harder for the state to switch to renewable energy. Yet, the issue here seems to be the reluctance in switching to renewable energy due to the strong (political) presence of the coal industry. Firstly, Indonesia signed an agreement to decommission 9.3 gigawatts of coal plants while planning to produce 13.8 gigawatts in coal energy. Secondly, the Omnibus Law, arguably, made it easier for the coal industries to function. Fining persons who disrupt the activities of coal mines can be seen 2022 issue 1 ILSA Law Journal

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ISSN: 2772-9486 as ‘silencing’ activists protesting against coal mines. This means that coal mines do not have to worry about protestors as they can threaten them with Article 39 of the Omnibus Law and label them as ‘hindering their activities’. Furthermore, the 0% royalty Article in the Omnibus Law allows coal companies to gain more profit which can increase their exploitation of natural resources and surrounding communities. On top of that, the local governments are not conducting proper EIAs and rejecting lawsuits pertaining to the topic as in the case of Celukan Bawang.

In Indonesia’s NDC for the energy sector, Indonesia proposes that new and renewable energy be at least 23% in 2025.97 The year 2025 is in three years, and from the looks of it, the renewable energy sector is not developed enough yet as the government is too focused on coal energy. The NDC also states that coal should be at a minimum of 30% in 2025, but coal contributed to 63.6% of the energy mix in 2020.98 Reducing the numbers by 50% within three years proves to be difficult, especially with new coal plants, the legislation favoring coal companies, and the lucrative coal business. This shows that as of now, the energy sector does not fully comply with the international environmental obligation to decrease emissions and make the switch to renewable energy.

The waste management sector on the other hand, has progressed as the rate of waste reduction and waste management have increased over the years.99 The general public is participating as companies encourage less waste or the 3Rs in their program. Additionally, the education on waste management in Indonesia is more developed than in the other sectors of concern. Indonesia realizes that effective waste management can bring an increase in economic growth to the nation. This is also the reason why the waste management sector is thriving.

While in other sectors, deforestation and coal power plants contribute to the economy more than their green counterparts, the solution for waste management is profitable in itself. An example of this is the Waste and Energy program, in which waste is turned into energy which makes the use of non-renewable energy sources redundant. Therefore, Indonesia’s NDC for waste management aligns with its state practice.

97

(n 35) Indonesia’s NDCs (2021).

Statista Research Department ‘Electricity generation by coal Indonesia 2014-2020’ (statista, 2021) <https://www.statista.com/statistics/994184/coal-electricity-generation-indonesia/> accessed 7 February 2022.

99 (n 95) Sistem Informasi Pengelolaan Sampah Nasional.

98

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This investigation shows, that even with abundant natural resources, a nation can still be relatively underdeveloped to pressing problems. Indonesia generally has a substandard implementation in managing its resources in a sustainable manner in relation to the international environmental obligations framework. Based on this analysis, it seems that Indonesia has not fully conformed to Article 4(2). Their desire for economic growth at the cost of the natural environment, deeply emphasized that Indonesia has the resource curse.

III.

COCLUSION

In conclusion, it is now possible to answer the question of ‘How effective is Indonesia’s implementation of international environmental legal obligations as per Article 4(2) of the Paris Agreement regarding mitigation efforts of climate change.’ By examining Indonesia’s environmental obligations laid down in the NDCs and its state practice, it becomes evident that its implementation is not as effective as it could be. Indonesia does not fully adhere to Article 4(2). On the bright side, the only effective implementation takes place in the waste management sector, while other sectors’ implementation measures require improvement. However, this is unsurprising, as Indonesia’s domestic environmental enforcement is not effective either. It showcases that Indonesia is a victim of the resource curse due to poor governance in managing their resources sustainably. Nonetheless, as a climate superpower, Indonesia has the responsibility to follow its international environmental obligations. If Indonesia chooses to do otherwise, it will not only affect the nation itself but the whole world. Therefore, Indonesia’s yearning for economic growth at the expense of the environment should be re-evaluated. Due to that, it is imperative for Indonesia to improve its implementation mechanism as climate change is a global crisis in need of much attention.

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NOTES

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Do Indigenous Communities’ Special Rights Impose Special Obligations on States to Protect the Environment?

By Charlotte Parker*

ABSTRACT This note examines the existing legislative and judicial framework in Latin America offering protection and conferring rights to the indigenous communities in the region. This is focused particularly on the extension of territorial related rights based on indigenous communities’ relationship to their territory, to serve as a basis for possible future protection. The note considers if past judicial interpretations of the Interamerican Court of Human Rights, of the UN Declaration on the Rights of Indigenous Peoples and the American Convention on Human Rights, could be repeated in light of an expected growth of climate migration in Latin America, resulting in the protection of rights intrinsic to indigenous communities. The note will consider past decisions, which extended rights and increased protection for indigenous communities, and whether this could be mirrored to ensure the conservation of indigenous rights for climate migration.

*

LL.B. Candidate, International and European Law Program, The Hague University of Applied Sciences.

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ISSN: 2772-9486 I.

INDIGENOUS COMMUNITIES’ SPECIAL NATURE IN THE LEGAL FRAMEWORK

Given historical challenges and oppression faced by indigenous communities, the need for protection of their rights has been recognized globally after the effects of colonization have been studied. This special position has resulted in the creation of national and international instruments aimed towards the protection of their rights, aside from general legislative human rights instruments. Such instruments grant further rights specific to indigenous peoples than that of the rest of society, as to protect values intrinsic to these communities and to ensure that their way of living is revered. Before considering some of these instruments, it is pertinent to note these also serve as a concrete reflection of the special status held by indigenous communities.

As a first instance, there is the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Some of the rights specific to indigenous communities include redress for actions that may deprive them of their integrity, cultural values or identity, dispossess them of their land and resources1 or for property taken without consent,2, another unique right held by these communities extends to their relationship with their territories, which includes the strengthening of their spiritual relationship with their territory,3, and the right to legal recognition of their lands.4. This differs from the regular protections offered to non-indigenous peoples, which is largely limited to the right to protection for interference with their own personal property.

Further, judicial interpretation has aided in the development, recognition, and applicability of indigenous rights. At the American judicial level, interpretation of international legislation has offered a similar protection to that of specific legislation for indigenous communities. A clear example is the extension of the applicability of articles of the American Convention on Human Rights (ACHR) to apply to specific indigenous rights in conjunction with the UNDRIP. For instance, the right to property enshrined in the ACHR which ensures the right of use of

1

Declaration on the Rights of Indigenous Peoples (UNDRIP), UNGA Res 61/295 (2 October 2007) UN Doc A/RES/61/295, art 8(2).

2 ibid art 11.

3 ibid art 25.

4 ibid art 26.

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ISSN: 2772-9486 property and prohibits arbitrary deprivations of property for all,5 has been interpreted to protect the relationship between the territory of indigenous peoples and their community based on the cultural value held by such land,6 Judicial interpretation has allowed indigenous peoples to obtain further protection even through ordinary legislative instruments, as demosnstrated by the cases mentioned below. With ordinary legislative instruments referring to legislation applicable to all, as opposed to legislation applicable only to a specific group. These interpretations, in conjunction with the existence of legislative instruments specific to indigenous peoples, further highlight the internationally recognized notion that such communities have a special character and that States must recognise this fact.

II.

CLIMATE CHANGE HAS CAUSED MASS AND FORCED MIGRATION OF INDIGENOUS COMMUNITIES

The recent exacerbation of the severity and effects of climate change has resulted in crossborder consequences, for all countries and communities. Although the effects of climate change have been observed worldwide, it has not affected each region, State, or even each community equally. This extends to the impact it has on migration, A household’s behavioural elements such as their perception of vulnerability to climate change driven risks, future needs, and past experience of migration influence their likelihood to migrate.7. This likelihood increases for low-income groups. Lower-income countries tend to have large concentrations of people living in locations that are highly exposed to environmental hazards and more people with livelihoods tied directly to agriculture and local natural resources.8.

Climate change has resulted in the production of ongoing ecological changes worldwide, severely impacting infrastructure, livelihoods and wellbeing of a region. These factors have

5

American Convention on Human Rights (ACHR) (adopted 22 November 1969, entered into force 1978), art 21.

6 Mayagna (Sumo) Awas Tingni Community Case, Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 79 (31 August 2001), para 148; Yakye Axa Indigenous Community Case, Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 125 (17 June 2005), para 143.

7 World Bank Group, ‘Groundswell: Preparing for Internal Climate Migration’ (2018), p55.

8 ibid, p49 &and 86.

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ISSN: 2772-9486 created climigration, where livelihood is no longer sustainable due to ecological reasons as the aforementioned.9.

At a regional level, climate change has already affected Latin America, comprising Mexico, Central America and South America. It is projected that this region will have over 17 million internal climate migrants, representing approximately 2.6% of the region’s population10. Given the rapid population growth of the region, this projection is increasingly concerning.

Thus far, the frequency and intensity of extremes in parts of Latin America have already increased. This includes extreme droughts and tropical storms with heavy rainfall and high winds. Projections for the region estimate more extreme El Nino events. The phenomenon consists of the warming of surface waters and the increase of speed and strength of currents in the Pacific Ocean.11. This results in the devastation of coastal ecosystems, increased precipitation in South America, and severe weather conditions throughout America. These predictions are concerning as it would affect croplands and fishing, which have historically formed a majority of the region’s economic activity. As a direct result of this, patterns of migration are expected to expand in a largely cyclical manner, towards neighbouring countries.12. El Nino is merely one of several climate phenomena with a severe impact on Latin America.

The indigenous communities of Latin America are among the first to face the direct adverse consequences of climate change, as they are more likely to rely on primary sector activities, have a lower socioe-economic background and depend directly on the environment for their resources, affecting factors such as food security.13

9

Robin Bronen, ‘Forced Migration of Alaskan Indigenous Communities due to Climate Change: Creating a Human Rights Response’ (University of Alaska) <https://www.iom.int/sites/g/files/tmzbdl486/files/jahia/webdav/site/myjahiasite/shared/shared/mainsite/events/ docs/abstract.pdf> accessed 10 January 2022.

10 World Bank Group, ‘Groundswell: Preparing for Internal Climate Migration’ (2018), p 109 11 National Geographic, ‘El Niño; (National Geographic Resource Library) <https://www.nationalgeographic.org/encyclopedia/el-nino/> accessed 10 February 2022.

12 World Bank Group, ‘Groundswell: Preparing for Internal Climate Migration’ (2018), p60.

13 Economic Commission for Latin America and the Caribbean, ‘Guaranteeing indigenous people’s rights in Latin America: Progress in the past decade and remaining challenges’ (November 2014) LC/L.3893/Rev.1, p52.

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ISSN: 2772-9486 III.

COMMUNITIES ARE FORCED OUTSIDE OF THEIR INDIGENOUS TERRITORIES WITH CULTURAL VALUE

As briefly mentioned beforehand, there is a special nature of the relation of indigenous communities with their territories, as recognized at the social, legislative, and judicial levels.

The dependence on the environment extends to socio-cultural considerations.

Indigenous communities in Latin America largely settle in ancestral territories, where their communities have resided for decades. In case of migration, indigenous communities favour geographic areas close to their ancestral territories.14 Thus, the significance of the lands they inhabit does not depend on factors such as connectivity, availability of resources or opportunities, as it does for other, non-indigenous, communities.

The Interamerican Court of Human Rights (IACtHR) recognized the close relationship of indigenous groups with their territory, and the fundamental role of this aspect with their culture, spiritual life and integrity in the Awas Tingini v Nicaragua case.15. This principle was further developed in the Yaykye Axa v Paraguay16 case where such relationship was highlighted as the basis of States’ obligation to preserve and transmit such relation to future generations of these indigenous communities. Furthermore, this connection extended to the obligation to protect the right to property as the Court determined this was crucial for Ecuadorian indigenous communities to preserve their lifestyle, cultural identity, social structure and customs.17.

IV.

STATES HAVE AN OBLIGATION TO RESPECT INDIGENOUS TERRITORIES

States’ commitment to the respect of indigenous rights is observed within their national legislation18, as well as at a regional and international level through further legislation and

14

ibid, p64.

Mayagna (Sumo) Awas Tingni Community Case, Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 79 (31 August 2001).

16 Yakye Axa Indigenous Community Case, Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 125 (17 June 2005).

17 Kichwa Indigenous People of Sarayaku Case, Merits and Reparations, Inter-American Court of Human Rights Series C no 245 (27 June 2012), para 146.

18 Constitución de la República del Ecuador 2008 art 171; Constitución de la nación Argentina art 75(17); Constitucion Politica de los Estados Unidos Mexicanos art 2(A) 15

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ISSN: 2772-9486 cooperation with supranational judicial decisions. Through rulings on the subject of indigenous rights, the IACtHR has proven the possibility of extending rights to afford greater protection.

Thus, taking into consideration the previous extension of judicial protection afforded on the basis of the significance of territory, one could argue a similar extension can be repeated for cases of climigration.

States could be under the obligation to ensure protection in light of the effects of climate change. The particular vulnerabilities faced by indigenous groups, and their ties to their territory, it would be appropriate to suggest States should ensure the effects of climate change are mitigated. This assurance would help avoid climigration which displaces indigenous communities and disrupts their socio-cultural identity and practice.

Furthermore, indigenous migrants have been found to reproduce their socio-cultural traditions after displacement.19 This poses an additional implication for States, which have historically been under the obligation to promote and respect the cultural traditions of such communities, to protect customs if migrations continue. This would entail further State interventions in these communities, as well as socio-economic investment to provide support.

19

Economic Commission for Latin America and the Caribbean, ‘Guaranteeing indigenous people’s rights in Latin America’ (November 2014) LC/L.3893/Rev.1, p67.

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Climate-Forced Displacement of Indigenous People: Enforcement Challenges

By Tabitha Thijm*

ABSTRACT Our global environment has been experiencing significant degradation caused by human activity through the destruction of ecosystems, decrease in quality of water and air as well as the depletion of natural resources and habitats. This ecological degradation has caused striking changes in weather conditions and is presently labelled as climate change. Sudden onset and slow-onset climate change events reinforce a perpetual interplay between socioeconomic, developmental, and disaster-related crises, often leading to displacements of the most vulnerable people. This article provides an exploratory ethnic study on climate forced displacement of Indigenous Peoples from a legal perspective and dissects the plausible factors that contribute to the persistent threat of anthropogenic ethnocide. The aim of addressing climate forced displacement of Indigenous Peoples is to attest to their kincentric-ecology and symbiotic approach to environmental crises and exemplifies the exigency of administering these methods into our Western systems. The history of Indigenous Peoples’ participation at UN Climate Change Conferences [COPs] over time, is a paradigm that reflects the ongoing inadequate representation of the minority group at momentous forums, and contests imperialistic patterns as a common denominator that accommodates marginalisation and lack of enforcement. Ultimately, this paper engages in the exploration of broadening the language of significant treaties such as the Rome Statute by introducing, for example, the terms ‘ecocide’ and ‘ethnocide’ to the core crimes, as a means to achieve durable solutions to climate change derived from the recognition of Indigenous Peoples rights and customs.

*

LL.B. Candidate, International and European Law Program, The Hague University of Applied Sciences.

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ISSN: 2772-9486 I.

INTRODUCTION

‘Kaitiakitanga’ is a vital principle for the Maori people of New Zealand, which prescribes kincentric ecology through the protection and preservation of the environment as a gesture of respect towards ancestors and the future generation.1 This principle can be attributed to most Indigenous People groups, and asserts the intimate relationship they have with nature.

Comprising of roughly 5% of the global population, Indigenous Peoples have managed to protect at least 80% of the Earth’s biodiversity and safeguard and manage at least 17% of the above-ground global carbon pertaining to their territories since 20202, all due to their kinship with nature. Lamentably, these territories are experiencing unfavourable impacts attributable to environmental degradation, and communities are struggling to retain their lands and resources. Additionally, Indigenous Peoples groups and other local communities are amongst those who face direct repercussions of climate change, which is often human-induced. This paper provides a superficial overlook on the Indigenous peoples experiences in light of climate chnage and examines what causes climate-forced displacement of Indigenous people, and how does the fortification of Indigenous Peoples rights promote the protection of the environment?

II.

WHO ARE INDIGENOUS PEOPLE?

Indigenous people, also known as First Nation, Aboriginal Peoples, Native People and/or Autochthonous Peoples, are often described as a culturally ethnic group of people who are associated with the first inhabitants of a geographic region, and have a sacred relationship to nature. The UN developed a modern understanding and definition of the word ‘Indigenous People’.3 Virtually, Indigenous People are characterised as an individual who self-identifies as pertaining to a specific Indigenous group and has been accepted as such by the members of that community, as well as have a strong ancestral connection to the ecological environment of a region. Furthermore, Indigneous People are characterised as having a distinct socio, political and economic system, in addition to a distinct language, culture and beliefs. The UN system further elucidates through the forum that a link of historical continuity with pre-colonial

1

“United Nations Environment Program (UNEP)”, ‘Indigenous People and Nature: A Tradition of Conservation’ (21–31 July 2017) <http://www.unep.org/news-and-stories/story/indigenous-people-and-nature-traditionconservation> accessed 21 March 2022.

2 Ibid.

3 “ United nations Permanent Forum on Indigenous Issues”, ‘Factsheet’ <https://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf> accessed 4 May 2022.

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ISSN: 2772-9486 societies can be identified in Indigenous peoples groups, and they often form a minority group in society.4 III.

FORCED DISPLACEMENT

The UN High Commissioner for Refugees (UNHCR) recorded a number of 82.4 million forcibly displaced people at the end of 2020.5 As of 2021, that number exceeds 84 million6.

There are two categories of displaced people to consider; (i) internally displaced people (IDPs), and (ii) refugees. Chapter II Article 6 (2.a) of the UNHCR describes a refugee as any person who crossed an internationally recognized State border, to which they do not owe their nationality, and is unwilling or unable to return to his or her former habitual residence due to the well-founded fear of being persecuted by virtue of their race, religion, nationality or political opinion.7 Consider the ongoing Syrian civil war in the Middle East as an exemplification, which accounts for 6.8 million refugees who have fled the Syrian Arab Republic as of 2021.8 The Guiding Principles on Internal Displacement classifies IDPs as persons or group of persons who have been impelled to flee their habitats.9 Further reference is made to the distinction between conflict-induced and disaster-induced internal forced displacement.10 This paper will mainly consider the effects of disaster-induced displacement on Indigenous Peoples.

For that purpose, disaster-induced displacement is ascribed to result from “a serious disruption of the functioning of a community or a society involving widespread human, material, economic or environmental losses or impacts, which exceeds the ability of the affected

4

United Nations Department of Economic and Social Affairs Division for Social Policy and Development Secretariat of the Permanent Forum on Indigenous Issues, 'Workshop on Data Collection and Disaggregation for Indigenous Peoples: The Concept of Indigenous Peoples' (19-21 January 2004) UN Doc PFII/2004/WS.1/3 5 ‘United Nations High Commissioner for Refugees (UNHCR)’, “Global Trends - Forced Displacement in 2020’ (UNHCR Flagship Reports, 18 June 2021) <https://www.unhcr.org/flagship-reports/globaltrends/> accessed 17 March 2022.

6 Internal Displacement Monitoring Centre, “2021 Global Report on Internal Displacement” (2021) <https://www.internal-displacement.org/global-report/grid2021/> accessed 15 March 2022.

7 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS (Refugee Convention) art 6(2)(a) 8 ‘UNHCR ”Refugee Statistics” (10 November 2021) <https://www.unhcr.org/refugee-statistics/> accessed 15 March 2022.

9 UNHCR, “Guiding Principles on Internal Displacement” (22 July 1998) UN Doc ADM 1.1, PRL 12.1 PR00/98/109.

10 Ibid art.2.

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ISSN: 2772-9486 community or society to cope using its own resources.”11 According to the IOM, forced migration is “a migratory movement which, although the drivers can be diverse, involves force, compulsion, or coercion.”12 Climate forced displacement is displacement triggered by weather related changes which lead to floods, droughts, wildfires and other disastrous happening which disrupt our global environment.13 IV.

CAUSES AND CONSEQUENCES

The main contributor to climate-forced displacement is climate change, and the main driver thereof is the greenhouse effect.14 Climate change disrupts the living conditions of humans globally. This disruption can either occur due to sudden onset events or slow onset events. A 2018 report instantiates hurricanes, storms and other whether-related disasters as sudden onset events,15 while slow onset events suggest the gradually evolving effects of climate change, for example droughts, sea level rise and desertification.16 However, these events can be considered merely externalities of human activity. As of 2020, CO2 concentration in the atmosphere has risen to 48% above pre-industrial level, and this number continues to rise daily.17 Deforestation, production of carbon dioxide through the burning of coal, oil and gas, and the increase in livestock farming are just a few examples of contributing human activity. When addressing climate forced displacement of Indigenous People, the fact of the matter is that their entire existence is in jeopardy and the issue goes beyond the environmental crisis. Although they are amongst those who contribute the least to climate change, Indigenous Peoples run the highest risk of climate forced displacement. Consequently, there is an urgent need to fortify Indigenous Peoples rights as a means to effectively diminish ecological threats and restore environmental damage inflicted.

11

UNHCR, “The slow onset effects of climate change and human rights protection for cross border migrants, 37th session Human Rights Council” (22 March 2018) A/HRC/37/CRP.4.

12 IOM UN Migration, “Key Migration Terms” (5 July 2019) <https://www.iom.int/key-migration-terms> accessed 15 March 2022.

13 “United Nations Educational, Scientific and Cultural Oraganization (“UNESCO”)”, “New UNESCO working paper on the impact of climate displacement on the right to education” (30 november 2020) <https://en.unesco.org/news/new-unesco-working-paper-impact-climate-displacement-right-education> accessed 17 March 2022.

14 Williams Kweku Darkwah and others, ‘Greenhouse Effect: Greenhouse Gases and Their Impact on Global Warming’ (2018) 17 Journal of Scientific Research and Reports 1.

15 UNHCR, “The slow onset effects of climate change and human rights protection for cross border migrants, 37th session Human Rights Council” (22 March 2018) A/HRC/37/CRP.4.

16 ibid.

17 European Commission, Climate Action, ‘Causes of Climate Change’ <https://ec.europa.eu/clima/climatechange/causes-climate-change_en> accessed 14 March 2022.

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ISSN: 2772-9486 1. Economic Activities There are numerous components to consider as agents that exacerbate climate-forced displacement of Indigenous Peoples. One specific matter to consider is economic activity, which mostly comprises land-grabbing, extractivism of natural resources while encroaching Indigenous lands, mineral exploitation, large-scale development projects such as dams and pipeline construction, logging, urbanisation and the list goes on. Such activities have led to forcible evictions of Indigenous People and have precipitated a long list of human rights violations. Think of the 670 km pipeline that ought to be constructed by the Coastal Gaslink that runs through Indigenous land, Gidimt’en clan territory, without free, prior and informed consent of the Wet’suwet’en Hereditary Chiefs,18 as prescribed by the UN Declaration on the Rights of Indigenous People (UNDRIP).19 Another example that epitomizes economic-induced climate forced displacement of Indigenous People takes place in the Peruvian Amazon, where gold extractive mining concessions are granted by the Peruvian Government, practically allowing deforestation, pollution and further environmental degradation, while ignoring Indigenous People rights.20 2. Defective Nature Conservation Policies Another underlying factor that emerges when considering forced displacement of Indigenous Peoples due to climate change is the paradoxical conservation approaches taken by governments. These approaches are based on a narrow and restrictive interpretation of ecological conservation, and often lead to denial of access to traditional resources of food, shelter and herbal medicine, despite the fact that Indigenous Peoples are proven to play a crucial part when it comes to nature preservation. This failed approach to nature conservation is exemplified by a gap in the domestic legal framework of Nepal, where the protected nature reserves often cover ancestral grounds of Nepal’s Indigenous population, from which

18

Leyland Cecco, ‘Pipeline battle puts focus on Canada's disputed right to use indigenous land’, “Guardian (11 Feburary 2019)” <https://www.theguardian.com/world/2019/jan/11/canada-pipeline-indigenous-trudeau-treaty> accessed 20 March 2022.

19 UN “GA” “Declaration on the Rights of Indigenous Peoples” (2007) Res 61/295, art 32.

20 ‘Mining Activity in the Peruvian Amazon is Impoverishing the Arakbut Indigenous People - IWGIA International Work Group for Indigenous Affairs’ (21 November 2021) <https://www.iwgia.org/en/news/4569mining-activity-in-the-peruvian-amazon-is-impoverishing-the-arakbut-indigenous-people.html> accessed 20 March 2022.

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ISSN: 2772-9486 Indigenous Peoples have been forcibly evicted without being provided with alternative livelihoods or compensation21. Additionally, they are often denied access to nature conservations, and there have been reports of detention and ill-treatment, even death, of Indigenous People who set foot on park grounds22. There is a clear lack of regulation by the Government of Nepal, and this shortcoming poses a threat to Indigenous Peoples all over the world. Another Government that actively and continuously disregards Indigenous Peoples and land rights is Tanzania, where the Maasai, who are a pastoralist community and dependent on livestock for survival, are denied the right to their lands where nature reserves are established, consequently hindering access to livelihood without any compensation23.

3. Dependency on Natural Resources In addition to the aforementioned human-induced agencies, another factor that plays a key role in climate forced displacement of Indigenous Peoples is derived from the lack of natural resources due to ecological degradation and the deprivation of relic sustenance on which they have depended on since pre-colonial centuries. Indigenous Peoples communities are known for their complex kincentric relationship to nature, where they believe nature to be an extended ecological family with whom they share ancestral connections. Due to the ecological degradation and the inordinate dispossession of their land and biodiversity, these groups of people are often forced out of their habitats in pursuit of a new source of livelihood. This is elucidated in the Indigenous Peoples’ experience in Peru, where gold extraction activities have led to the destruction of Indigenous territories and natural resources have become a rare commodity, generating loss of fundamental knowledge and ancestral traditions24. Additionally, the effects of the environmental crisis have caused other long-term impacts on Indigenous

21

Lai Ming Lam and others, ‘The Long-Term Livelihood Effects of the Conservation-Led Displacement in Kanchanpur, Nepal’ in Naoyuki Yoshino and Saumik Paul (eds), Land Acquisition in Asia (Springer Nature Singapore pte Ltd 2019).

22 Amnesty International, ‘Indigenous Peoples the Silent Victims of Country’s Conservation “Success Story”’ (Nepal, 9 August 2021) <https://www.amnesty.org/en/latest/news/2021/08/nepal-indigenous-peoples-the-silentvictims-of-countrys-conservation-success-story/> accessed 14 March 2022.

23 The International Work Group for Indigenous Affairs, ‘70,000 Maasai in Loliondo, Tanzania, Face Another Forceful Eviction’ IWGI (Copenhagen, 26 January 2022) <https://www.iwgia.org/en/news/4597-maasailoliondo-tanzania-forceful-eviction.html> accessed 22 March 2022.

24 United Nations, ‘Climate Change | United Nations For Indigenous Peoples’ <https://www.un.org/development/desa/indigenouspeoples/climate-change.html> accessed 23 March 2022.

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ISSN: 2772-9486 Peoples livelihood. Droughts and floods, for instance, put vulnerable populations at a high risk of food shortages.25 V.

INDIGENOUS PEOPLES AND INTERNATIONAL JURISPRUDENCE

There has been significant development in the international sphere of Indigenous Peoples rights, such as the adoption of the International Labour Organisation (ILO) Convention 107 on Indigenous and Tribal Populations of 195726 and ILO Convention 169 on Indigenous and Tribal Peoples Convention of 198927, as well as the adoption of the Convention on Biological Diversity at the Rio Earth Summit of 199228, and the most recent and celebrated development, the adoption of the UN Declaration on Rights of Indigenous Peoples (UNDRIP) by the United Nations General Assembly in 200729, yet there are many postcolonial critiques when it comes to the inherent underlying Eurocentric capitalist frame of International Law. The concepts of sovereignty and self-determination are distorted and Indigenous Peoples groups are often marginalized by the international community, especially on the topic of climate policy. There has also been no substantial progress in the proportionate implementation of the rights that have been bestowed upon Indigenous Peoples. Accordingly, the most commonly shared adversity between Indigenous Peoples groups is the continuous violation of their land rights.

In order to promote this right, States are required to “obtain free, prior and informed consent to the approval of any project affecting indigneous lands or territories.”30 However, due to the suggestive nature of these declarations and conventions, and the systemic colonial pattern in the international legal order, enforcement of Indigenous Peoples rights on a national level has never been a priority.

25

Laura Notess, ‘For Indigenous Peoples, Losing Land Can Mean Losing Lives’ (World Resources Institute, 31 May 2018) <https://www.wri.org/insights/indigenous-peoples-losing-land-can-mean-losing-lives> accessed 23 March 2022.

26 International Labour Organisation (ILO) Convention on Indigenous and Tribal Populations, 1957 (No. 107).

27 ILO Convention on Indigenous and Tribal people, 1989 (No. 169).

28 “Convention on Biological Diversity (CBD)” (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 29 “United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)” (adopted 13 September 2007) UNGA Res 61/295 30 ibid. Art. 32 (2).

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ISSN: 2772-9486 VI.

POSSIBLE CHALLENGES AND SOLUTIONS

There is an interrelation between the protection of Indigenous Peoples rights and the protection of the environment that has been contested as a durable solution to climate change31, which could result in a positive impact to the climate forced displacement quandary. A way to accommodate the protection of Indigenous Peoples rights, as well as the protection of the environment interchangeably is the reintroduction of ‘ecocide’ as a core crime under the Rome Statute. Ecocide was first introduced in the 1970 Conference on War and National Responsibility32 since then there have been numerous advances made to include the term in international legal documents. Additionally, ecocide was defined in the draft document of the Rome Statute as the ‘wilful and severe damage to the environment’33, and was originally intended to be included in the list of triable crimes against peace. However this wording was removed and replaced with Article 8.2(b)(iv) of the final consolidation.34 Moreover, the ICC has jurisdiction to prosecute individuals, in context, this limits the scope drastically in view of corporate responsibility. Corporations are protected by the so called ‘corporate veil’, which in simple terms entails that individual shareholders and other members of a company cannot be held liable for the actions of said company. Considering that mega-corporations are one of the main contributors to climate change, and are amongst those who inflict direct harm to the ecological system, many argue the implementation of measures for the criminalisation of international environmental destruction to be arduous and ineffective, since the perpetrators cannot be held liable. Luckily, the environmental rights movement has taken a stance globally, and more and more States around the globe are in pursuit of a common framework against climate change. The Shell v Milieudefensie et al. (2021) case35 is a noteworthy climate litigation case, in which the District Court of The Hague ruled in favor of environmental protection and ordered Shell to standardize and align corporate action to the goals set out in the Paris Agreement, which ought to be achieved through the reduction of the corporation’s global

31

“United Nations Environment Program”, ‘Indigenous Peoples and the Nature They Protect’ (UNEP, 8 June 2020) <http://www.unep.org/news-and-stories/story/indigenous-peoples-and-nature-they-protect> accessed 23 March 2022.

32 “United Nations Educational, Scientific and Cultural Organisation”, ‘About 1970 Convention’ (UNESCO, 12 February 2020) <https://en.unesco.org/fighttrafficking/1970> accessed 23 March 2022.

33 ILC, “Report of the International Law Commission on the work of its forty-sixth session (2 May- 22 July 1994)” UN Doc A/49/10.

34 Rome Statute of the International Criminal Court (Rome Statute) 2002, UN Doc A/CONF.183/9, Art 8 (2 b)(iv).

35 Milieudefensie et al v Royal Dutch Shell plc., The Hague District Court, ECLI:NL:RBDHA:2021:5337.

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ISSN: 2772-9486 carbon emission.36 Judgements such as those set forth in the Shell case are critical for the eradication of ecocide, based on the fact that States potentially encourage other States to hold national corporation liable for breach of social and environmental responsibilities, consequently leading corporations to deviate from any conflict stemming off of the depletion of resources.

Another suggestion, which some may consider more radical, is the implementation of the term ‘ethnocide’ as an element under the crime of Genocide. The articulation of this concept first emerged along with the Indigenous rights movement around the 1960s and was first coined

by Raphael Lemkin to be used interchangeably with ‘genocide’. Over the recent years, ethnocide has been described by scholars as the “imposition of the national pattern of the oppressor”37, a “process of its own, which would result in the extinction of some ethnic groups’ culture, either through its targeted destruction or its forced assimilation into the dominant culture”38, by “suppress[ing a group] by extinguishing their specific traits” and “the total destruction of a culture, so that the identity of a people ceases to exist”39, or the intentional destruction of societal cohesion – including identity, culture, language, and belief systems – the removal of a people’s means of survival, and the forced removal of and from a people’s territory.40 Introducing ethnocide as a genocidal element under the core crimes of the Statute would be the epitome of Indigenous Peoples’ rights protection and can additionally be used as a robust tool for the protection of the environment.

VII.

CONCLUSION

When attempting to avert climate-forced displacement of Indigenous Peoples, there is evidently an implementation gap between climate policy enforcement at the national level and on an international level. States have perpetually failed to implement laws and policies that bring Indigenous Peoples’ rights to life. Nonetheless, there is still an urgent need to assimilate

36

Ibid.

Raphael Lemkin, “Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Foundations on the Laws of War)” (William A. Schabas and Samantha Power (trs), 2nd ed, The Lawbook Exchange Ltd 2008).

38 Stefania Negri, ‘Cultural Genocide in International Law: Is the Time Ripe for a Change?’ (2013) 10(5) TDM <https://www.transnational-dispute-management.com/article.asp?key=1997> accessed 23 March 2022.

39 Elisa Novic, The Concept of Cultural Genocide: An International Law Perspective (OUP 2016).

40 Stefanie Kunze, ‘A three-Dimensional Model for Perpetrators of Genocide’ (2020) 50(4) International Journal of Sociology < https://www.tandfonline.com/doi/abs/10.1080/00207659.2020.1775406> accessed 24 March 2022.

37

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ISSN: 2772-9486 Indigenous traditional knowledge within the Western system in order to effectively protect the environment, but this is not feasible without the recognition of Indigenous Peoples rights.

Without the recognition of these rights, Indigenous Peoples face the lingering threat of unaccounted for human-induced climate-forced displacement, which could lead to ethnocide in the long run. Granting the criminalisation of environmental destruction will not only fortify Indigenous land rights and encourage a symbiotic approach to climate risk reduction, in which humans work with the natural environment for mutual benefit, but it will additionally lead to better first-hand ecological management attributable to Indigenous Peoples’ kincentric relationship to nature.

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