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In this issue:

• Out of sight, out of mind? Pragmatic actions in international law to address receding shorelines and the disappearance of islands

• Strengthening FLEGT and REDD+: Synergies in Côte d’Ivoire

• Engagement between the formal and informal seed sector: a contribution to ending hunger and malnutrition

• Resources for the development law specialist

Out of  sight out of mind? Pragmatic actions in international law to address receding shorelines and the disappearance of islands

Rising sea levels and the increased occurrence of natural catastrophes, as well as the associated damage they cause to peoples and countries have raised difficult questions. Would basepoints – from which the outer limits of the exclusive economic zone (EEZ) of a coastal or island State are measured – have to shift with a receding shoreline? Does an atoll State lose its marine jurisdictional areas, such as the EEZ, if the State disappears under rising sea levels? These questions are no longer academic; they are being asked by, in particular, the Small Island Developing States of the Pacific (Pacific SIDS), which are concretely affected by these natural phenomena.

A related question is what happens if an island State is submerged to the extent that it is uninhabitable but its citizens continue to consider themselves as belonging to a self-governing entity even if they live elsewhere? The issue is vital to determining the former island State’s ability to continue utilizing the natural resources that occur within its EEZ.

Other pertinent questions could be: are there non-physical short-term to long-term adaptation and mitigation responses to climate change and its effects? Is there a legal adaptation or mitigation response to climate change and sea level rise? 

Clearly, the 1982 United Nations Convention on the Law of the Sea (LOSC), often referred to as the constitution for the oceans, did not anticipate the possibility of climate change or islands disappearing as a result of sea level rise induced by climate change. Its provisions, therefore, do not provide concrete responses to this issue. Scholars and eminent international law experts, in attempting to interpret the meaning of the most relevant provisions of the LOSC on this issue have developed two main – and opposing – poles of thought. The first view is that the outer limits of the EEZ shift or ambulate with shifting basepoints i.e. the application of the ambulatory principle¹. The opposite view is that marine jurisdictional claims, once established, remain valid². Legal literature tending to support this latter view, considering that a former island State can continue to utilize national resources within its declared EEZ in the affirmative³, have referred to some interesting analogies such as the existence of the Order of St. John or the Knights of Malta⁴ as a self-governing entity even if it may not have all the attributes that constitute a State under international law⁵.

Relevant literature suggests that there are – or should be – legal and policy responses to the many questions raised in this context, while recent initiatives may provide possible pragmatic pathways. For example, the Development Law Service (LEGN) of the Legal Office of FAO teamed up with the Pacific Forum Fisheries Agency (FFA), through a project implemented in 2014 and 2015, to identify pragmatic responses. National and regional consultations conducted under the project with representatives of the Pacific SIDS confirmed the perception that the threats posed by climate change and related rising sea levels are not only a real threat to livelihoods but also to the very survival and existence of Pacific peoples. Moreover, there is a real concern that, if the vulnerable States of the Pacific were to vanish under rising sea levels, they will lose their economic rights and jurisdiction over vast maritime areas if action is not taken urgently.

The main solution proposed under the FAO/FFA Project is for the Pacific SIDS to finalize their maritime boundaries immediately, in particular the outer limits of their maritime jurisdictional areas, so that if the questions referred above are raised in the future, they will stand a better chance of having their claims acknowledged. The proposed solution – found in the document entitled “Securing the maritime jurisdictions of Pacific SIDS against climate change”⁶ (the Regional Strategy) – Calls for interrelated actions at the national, regional and global levels, as follows:

• At the national level, the Pacific SIDS should: determine their baselines and negotiate and finalize maritime boundary agreements with neighbouring States and ratify such agreements; secure their baselines and resulting maritime boundaries and outer limits in domestic legislation; publicize baselines and limits derived from those baselines and deposit them with the UN in accordance with LOSC; enhance national capacity to address maritime boundaries issues;

• At the regional level, the Pacific SIDS should ensure that: the completion of their baselines and maritime boundaries remain high priorities and that current regional initiatives and efforts to this end be encouraged and supported; regional declarations by various organizations and regional groupings reiterate that changes in sea level do not impact on the maritime jurisdictions of the Pacific SIDS; actions in support of securing maritime jurisdictions of the Pacific SIDS be factored into the work programmes of relevant regional organizations; efforts be made by regional organizations to ensure linkages and synergies with ongoing projects in the region to avoid duplication.

• At the global level, the Pacific SIDS should ensure that awareness is raised on the issue of climate change impacts on their maritime jurisdictions and related matters in appropriate international fora.

A relevant and related regional action by the Pacific SIDS is the development of a Framework for Pacific Oceanscape⁷ (Oceanscape Framework) which catilyses action in support of the Pacific Islands Regional Oceans Policy to protect, manage and sustain the cultural and natural integrity of the ocean for present and future generations. Action 1B of Strategic Priority 1 of the Oceanscape Framework calls for regional action to fix baselines and maritime boundaries to ensure that the impact of climate change and sea level rise do not result in reduced jurisdiction of Pacific Islands States and Territories. The detailed actions in support of securing maritime jurisdictions of the Pacific SIDS of the Regional Strategy developed under the FAO/FFA Project will facilitate the achievement of Action 1B of the Strategic Priority 1.

An immediate observation of the actions identified in the Regional Strategy is that they seem rather ordinary in comparative terms and represent what is expected of coastal and island States, or any State for that matter, in order to clarify the outer limits of territorial or jurisdictional boundaries. Indeed, the most dramatic characteristic of the Regional Strategy could very well be its title which boldly proclaims that it will secure the maritime jurisdictions of the Pacific SIDS against climate change.

However, by committing to undertake, in a systematic manner, the actions ordinarily expected of coastal States, the Pacific SIDS are deliberately seizing the considerable control accorded to them by the LOSC over the process of determining their jurisdictional boundaries which they consider is a means of securing their futures in the face of the impacts of climate change and sea level rise. Indeed, the Pacific SIDS appear to have taken the position that once the coastal State has declared its boundaries, and leaving aside situations where there has been a protest, these boundaries will remain valid until changed by the coastal State, regardless of whether climate change and sea level rise reduces or completely submerges the land mass. This view is confirmed in the Oceanscape Framework which calls for a “regional effort to fix baselines and maritime boundaries to ensure the impact of climate change and sea-level rise does not result in reduced jurisdiction”⁸. Thus, in both the Regional Strategy and the Oceanscape Framework, the Pacific SIDS adopt a “no-regrets” approach whereby States are encouraged to “take actions that can be justified from economic, and social, and environmental perspectives whether natural hazard events or climate change (or other hazards) take place or not”⁹.

Most of the analyses and proposed mitigation responses to climate change and related rising sea levels have focused on tangible physical threats and propose related technical solutions. Unfortunately, the majority of these proposed solutions are technologically challenging and cost prohibitive for many countries, in particular the Pacific SIDS and other atoll States. Soft and indirect responses understandably have not been explored in depth by the Pacific SIDS in the past. The Regional Strategy highlights the need to pay attention to soft and indirect solutions and demonstrates the feasibility, as well as the potency, of solutions that can be implemented immediately, under existing international legal frameworks, and could have lasting positive impacts for the survival of island peoples and States.

1. For a brief explanation of the principle of ambulatory baselines see Clive H. Schofield, Against a rising tide: ambulatory baselines and shifting maritime limits in the face of sea level rise, (Paper presented at the Proceedings of International Symposium on Islands and Oceans, Akasaka, Tokyo, 22-23 January 2009).
2. See for example Hayashi Moritaka, “Islands’ Sea Areas: Effects of a Rising Sea Level”, Review of Island Studies, June 10, 2013. Translated from “Shima no kaiiki to kaimen jōshō”.
3. Rosemary Rayfuse, “International Law and Disappearing States; Utilising Maritime Entitlements to Overcome the Statehood Dilemma” University of New South Wales Faculty of Law Research Series No. 52, 2010.
4. The Order of St. John are formally referred to as the Sovereign Order of the Military Hospitaller Order of St John of Jerusalem, of Rhodes and of Malta. See the official website of the Knights of Malta: www.orderofmalta.int, See also, Costas M Constantinou, “Irregular States or the Semiotices of Knight Errantry”‟, 17 Revue International de Sémiotique Juridique (2004) 229-244.
5. Rosemary Refuse 2010 supra. See also inter alia, Lilian Yamamota and Miguel Estaban, Atoll Islands and Climate Change: disappearing States? 2012 - unu.edu/publications; Jacquelynn Kittel, The Global “Disappearing Act”: How Island States Can Maintain Statehood In The Face Of Disappearing Territory, 2014 MICH. ST. L. REV. 1207; digitalcommons.law, Achim Maas and Alexander Carius, Territorial Integrity and Sovereignty: Climate Change and Security in the Pacific and Beyond, 2010 - https://www.adelphi.de.
6. In FAO, Report of the second Regional Workshop on Strategies and Capacity Building in Pacific SIDSto Address Climate Change Impacts on Jurisdictional Claims.
7. Framework for Pacific Oceanscape - www.forumsec.org.
8. Action 1B of the Oceanscape Framework.
9. Paul B. Siegel and Steen Jorgensen, No Regrets Approach to Increased Resilience and Climate Change Justice: Toward a Risk Adjusted Social Protection Floor, International Conference: Social Protection for Social Justice, UK, 13 -15 April 2011 - https://www.ids.ac.uk/files/dmfile/SiegelJorgensen

Strengthening FLEGT nad REDD+: Synergies in Côte d'Ivoire

Much like the rest of West Africa, Côte d'Ivoire has suffered severe deforestation over the past several decades, primarily due to unplanned expansion of agricultural activities, uncontrolled fires and logging for tropical wood. As a result, the country’s forest cover has shrunk from 12 million hectares in 1960 to 2.5 million hectares today. Because of the severe loss and degradation of forest resources and thanks to its determination to protect its natural resources, Côte d’Ivoire is currently participating in two of the main global initiatives for improving forest governance: the Voluntary Partnership Agreement (VPA) part of the Forest Law Enforcement, Governance and Trade (FLEGT) action plan and the Reducing Emissions from Deforestation and forest Degradation (REDD+) initiative. 

FLEGT is an EU initiative responding to global concerns about the negative impacts of illegal logging and related timber trade. Under this framework, the EU and timber-exporting countries negotiate VPAs, which are bilateral trade agreements focusing on the legal harvesting and trade of timber. In Côte d’Ivoire, the National Coordination of the VPA process is hosted within the Ministry of Water and Forestry. Under the initiative, financial and technical support is provided to timber-producing countries.

REDD+ is a multilateral process framed by the international climate change negotiations addressing all drivers of deforestation, both inside and outside the forest sector. Under the initiative, countries receive payments for verified emissions reductions. The UN-REDD Programme - comprising FAO, UNDP and UNEP – assists partner countries through the provision of technical expertise to meet the REDD+ requirements. The REDD+ process in Côte d’Ivoire is led by the National REDD+ Commission (CN-REDD+) within the Ministry of Environment, Urban Health and Sustainable Development.

Despite these different foundations and the different lead ministries – which have often meant they run independently from each other – the two initiatives share the objectives of improving forest sector governance and forest management, potentially positively impacting upon livelihoods and alleviating poverty. Both address the legal, regulatory and institutional measures necessary to achieve these objectives. They also share many challenges on issues such as land tenure and customary rights.

The potential synergies between the initiatives are, it is considered, quite clear. For example, operationally, both have a strong focus on stakeholder engagement. In particular FLEGT, because of its design, has a very effective stakeholder engagement process in the context of legislative review. REDD+ could build and draw upon the stakeholder consultation mechanisms already developed under FLEGT.

The development of the ”VPA legality definition” is an excellent opportunity for potential synergy in the context of process. The legality definition is a requirement under each VPA. Timber and timber products that comply with it are considered eligible for FLEGT licences and may enter the EU market. The legality definition identifies the legislative requirements of the exporting country that must be systematically fulfilled (and verified) to ensure legal compliance of timber and timber products with the VPA. A multi-stakeholder process is used to develop the legality definition and, during this process, gaps, inconsistencies and overlaps in legislation may be identified that warrant legislative reform. From the perspective of process, efficiencies could be gained by addressing both the requirements of REDD+ and FLEGT in the same multi-stakeholder process.

From a substantive legal perspective, coordination of work under the two initiatives would certainly add value to the development of new laws, ensuring consideration of multi-dimensional and cross-sectoral aspects. Laws and regulations reviewed and developed under FLEGT address many issues of relevance to REDD+, and vice versa. New legislation and regulations could, therefore, be developed with the objectives of both initiatives in mind, rather than separately. This approach could ensure consistency and avoid contradiction.

Recognizing this, and at the request of the Ivorian Ministry of Water and Forestry, LEGN and other FAO units participating in FLEGT and UN-REDD, have supported the creation of a multi-stakeholder Legal Working Group (LWG) at the national level. This includes civil society representatives from “the FLEGT/REDD+ Civil Society Platform” and legal experts from the lead ministries for the two initiatives. This LWG will serve as a “think tank” supporting the ongoing drafting of implementing decrees for the Côte d’Ivoire Forest Code, and addressing key challenges arising under both FLEGT and REDD+, such as tenure and users’ rights, benefit sharing, as well as procedural rights. LEGN hopes that future legislative work under the two initiatives could be similarly coordinated in other jurisdictions.

Engagement between the formal and informal seed sector: a contribution to ending hunger and malnutrition

In the context of ending hunger, achieving food security and improving nutrition and promoting sustainable agriculture, Target 2.5 of Goal 2 of the Sustainable Development Goals, commits the international community, by 2020,

“to maintain the genetic diversity of seeds, cultivated plants and farmed and domesticated animals and their related wild species, including through soundly managed and diversified seed and plant banks at the national, regional and international levels, and promote access to and fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge, as internationally agreed”.

In this context, it is interesting to consider ongoing explorations of policy and legislative responses to this Target. 

In March 2016, an “Expert Meeting on the Impact of Seed Laws on Smallholder Farming Systems in Africa: Challenges and Opportunities” was convened to discuss the challenges created by certain seed law provisions to farmer seed systems and the policy and legal mechanisms that can support these seed systems in order to strengthen smallholder farmers’ seed security and livelihoods¹. During the Meeting, a number of challenges – and possible solutions – were identified, and are highlighted in this piece.

Farmers in many developing countries face serious fundamental problems related to access to quality seed and improved varieties of crops species suited to their needs and adapted to their agro-ecological conditions. In these countries, the formal and informal seed delivery systems co-exist in large part. In many countries, national policies and laws do not recognize or support the informal seed sector. Smallholder farmers usually resort to either or both of these systems for different crops and for different seasons. Strengthening both formal and informal seed systems is an integral part of the sustainable use of plant genetic resources for food and agriculture (PGRFA).

A key question is whether, and how, national or regional policy frameworks can support an integrated approach by allowing interactions between the formal and the informal seed systems.  

Some answers to this key question may be found in the FAO Voluntary Guide for National Seed Policy Formulation (Voluntary Guide)². This important tool aims to assist developing countries in formulating effective seed policies, creating enabling environments for seed sector development, and facilitating the access to, and use of PGRFA. The Voluntary Guide calls on national governments to recognize the informal sector’s important role in seed supply and promote support in appropriate areas such as extension, training schemes for farmers, community seed banks, germplasm conservation, and seed quality control, or even promote official recognition of some of these activities, as well as the importance of the role of women in these various functions. This requires clear provisions in national policies and laws on the respective roles of the formal and informal seed sectors to enable coordination between the components of both seed systems.

There is also a need to further reflect on and formulate legal mechanisms that support farmer seed systems or an alternative quality insurance mechanism for farmer-based systems. In the context of the Meeting, it was also agreed that pilot institutionalization in selected countries should take place.

LEGN will continue to contribute to the development of innovative approaches in order to design relevant and contextualized legal frameworks which ultimately contribute rapidly and effectively to ending hunger and malnutrition.

1. The meeting was organized under the auspices of the Integrated Seed Sector Development (ISSD) Africa Programme. ISSD Africa is a partnership with the Wageningen UR Centre for Development Innovation and the Future Agricultures Consortium and is funded by the Bill and Melinda Gates Foundation and the Dutch Ministry of Economic Affairs. The report of the Meeting can be found here.
2. The Voluntary Guide was endorsed by FAO’s Commission on Genetic Resources for Food and Agriculture in January 2015.

Resources for the Development Law Specialist

Risk Based Imported Food Control Manual: The FAO Manual on Risk Based Imported Food Control aims to assist authorities to improve the effectiveness of controls over imported food. It addresses different approaches to managing risks related to imported food and provides concrete illustrations of the various ways in which the standards established by the Codex Alimentarius Commission can be implemented.

Tools supporting the implementation of the VGGT: A number of new tools have been produced to support implementation of the VGGT, including: Responsible governance of tenure and the law: a guide for lawyers and other legal service providers; Legal assessments in Sierra Leone against the VGGT; and, a Legal Assessment Tool for gender-equitable land tenure.

Social protection and the law: Also of interest to the development law specialist is an analysis exploring the linkage between social protection and the right to food.

Food Security and Nutrition legislation: For those interested in laws on food security and nutrition (FSN), A comparative analysis of the FSN legislation in El Salvador, Guatemala, Honduras and Nicaragua provides recommendations on how the right to food could be enshrined in national law. Read more...

More documents and publications may be found at the Legal Office section of the FAO website. They include legislative studies and legal papers, as well as other FAO publicationsto which the Development Law Service has contributed.

You can also find the latest entries in the FAOLEX database of national laws, regulations and policies on food, agriculture and natural resources management, at:http://faolex.fao.org/faolex/latestentries.html