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Development Law Magazine - #2 of 2018

19/12/2018

In this issue:

  • The election of the Director-General of FAO: a democratic and inclusive process.

  • Private legal practitioners: an underutilized national asset.

  • Introducing real world lawyers to responsible agricultural investment.

  • The status of indigenous land tenure in the midst of national land reforms.

  • Climate change in Sri Lanka – impacts and responses.

  • The certification process for treated wood packaging material (WPM) used in international trade: a brief explanation of the scope of the “ISPM 15 Mark”.

  • Webinars on legal services for development.

 

The election of the Director-General of FAO: a democratic and inclusive process

At its Forty-first session, in June 2019, the Conference of FAO will elect a new Director-General for a term of four years, starting on 1 August 2019 and running until 31 July 2023. The process of electing the chief executive of FAO is the most democratic and inclusive election process of all major Specialized Agencies of the United Nations, and more inclusive than that of the United Nations itself. The election is carried out by secret ballot by the Conference of FAO, the supreme plenary body of the Organization, and includes all Member Nations of the Organization. Unlike the other main UN System organizations, the executive body of restricted membership - the Council of FAO - does not play a role in the choice of candidate. In particular, the Council neither proposes a candidate to the Conference, nor restricts nominations. The Council’s role is limited to the hearing of candidates, as described below.

Members nominate candidates for the position of Director-General. Candidates may be nominated during a period of three months and, at its recent session at the beginning of December 2018, the FAO Council set the nominations period of 1 December 2018 until 28 February 2019. The Secretary General of the Conference and the Council is required to circulate nominations received within ten days from the end of that period. In practice, the circulation of nominations takes place the day after the closure date, as occurred in the elections of 2011 and 2015.

Candidates will be required to address the Council at its session of April 2019 and answer questions from Members. However, no debate takes place, nor are any conclusions drawn from the hearing. When these procedures were introduced in 2009, there was some debate as to whether these procedures were necessary insofar as the process of appointment is essentially a political one within the authority of sovereign Members, and candidates have ample opportunity to present their vision and views in the context of informal meetings. However, the hearing of candidates has become a feature of appointment processes in many organizations. FAO maintains this practice and the FAO Council recently proposed adjustments to the hearing procedure in the Council, considerably increasing the time allotted for the candidates to make their statements and respond to questions.

Candidates are also required to address the Conference which elects the Director-General. Under the rules, candidates were also supposed to answer questions from Members at the Conference session. However, through agreement of candidates, this requirement has been waived and may now be simply a theoretical possibility. Indeed, by the time of the Conference session, the positions of the Members vis-à-vis the candidates has usually been determined and a hearing would serve no purpose.

The majority required for a candidate to be elected is a majority of the votes cast, and a candidate is declared elected when that majority is obtained. As has occurred several times in the life of the Organization, when there are more than two candidates, this requires the holding of successive ballots, gradually eliminating the candidates with the smallest number of votes, until the required majority is obtained by one of the candidates. The election procedures are extremely detailed in this respect. They provide, first, for a ballot among all candidates. Then, all the candidates take part in a second ballot and the candidate having the smallest number of votes is eliminated. Successive ballots are held until a candidate obtains the required majority. This detailed election procedure was introduced by the Conference in 1967 after a situation where, in the absence of a procedure for the elimination of candidates with fewer votes, several candidates were unable to obtain a majority of the votes cast after successive ballots.

Finally, a curious and unusual feature of the election procedures in FAO is that, even when there is only one candidate for the office of Director-General, a secret ballot must be held. Furthermore, on the basis of arrangements approved by the Conference in 1955, when there is only one candidate, the ballot paper nevertheless provides for yes, no and abstention. So, even where a candidate is assured of being elected, the possibility exists for Members to record their positions by voting yes, no or abstain, giving an important political indication of the level of support for that candidate.

Private legal practitioners: an underutilized national asset

When the general public thinks of lawyers upholding human rights, the image of passionate advocates pleading their cases before the courts springs to mind. However, private legal practitioners can also play a key role in upholding international standards, rights and obligations in what may be regarded as their more mundane, day-to-day, professional activities. Professional associations can provide valuable support to legal practitioners to this end. The promotion of the respect of human rights, including the right to food, is not limited to “activist” law firms or pro bono activities.

A neglected resource

The IBA has a membership of more than 80,000 individual lawyers and more than 190 bar associations and law societies spanning over 170 countries; this includes practically every legal practitioner in the world.1 This is indicative of a potentially large source of highly qualified experts, who could be actively encouraged, as part of their daily activities, to promote and uphold rights, including those related to food and agriculture.

This could be achieved in a number of ways, including the following:

  • members of the legal profession can contribute to the promotion and protection of human rights through the advice they provide to clients;

  • professional associations could contribute to national law reform exercises relating to human rights, including in respect of food and agriculture;

  • professional associations could introduce fundamental principles into codes of conduct and ethical guidance, and develop training and information resources for their members.

None of these ideas are new. Arguably, however, they may not have been sufficiently explored in the context of food and agriculture and, in particular, the right to food.

Why should private legal practitioners be interested in promoting human rights, including rights related to food and agriculture?

The UN Guiding Principles on Business and Human Rights (“UNGPs”) clarify the duties and responsibilities of business to respect human rights. In the commentary to paragraph 11, this is described as follows:

The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights.2

The commentary to paragraph 23 demonstrates the broad scope of this responsibility:

Although particular country and local contexts may affect the human rights risks of an enterprise’s activities and business relationships, all business enterprises have the same responsibility to respect human rights wherever they operate. Where the domestic context renders it impossible to meet this responsibility fully, business enterprises are expected to respect the principles of internationally recognized human rights to the greatest extent possible in the circumstances, and to be able to demonstrate their efforts in this regard.3

The IBA Practical Guide on Business and Human Rights for Business Lawyers (“the Practical Guide”) explains how the UNGPs apply to legal practitioners, as advisers and as businesses.4 These general obligations apply to all areas of practice, and embrace all human rights. Private practitioners are bound to promote human rights as a professional obligation, as well as through any sense of personal mission. This extends to the individual advice that lawyers provide to their clients.5

Promoting human rights through advice to clients.

The Practical Guide observes, in respect of the UNGPs, that

Lawyers have an important role to play in this context. They are frequently asked to advise their business clients to the extent that the UNGPs are incorporated or reflected in public, commercial, and financial legal requirements, or the client’s own internal policy and governance framework. Where the UNGPs are not so reflected or incorporated, lawyers can nevertheless act as wise professional counsellors and enhance the value of their services by providing appropriate human rights context for their legal advice and services. The law is not static, but is dynamic and evolving; what is considered unethical and a reputation risk today may well be unlawful tomorrow. Lawyers are uniquely positioned to advise clients on this potential.

This is true in all areas of legal practice. For example, a contract to transfer rights in a piece of agricultural land must reflect and comply with the prevailing legislation and regulations. It should also reflect relevant international norms and standards, even if these are not expressly reflected in the applicable legislation. In the capacity of “wise counsellors”, practitioners should recommend actions that are consistent with international human rights standards, and the UNGPs, even if these exceed the minimum legal obligations under national law. To continue with the land transaction example, the benefits of such an approach to business lawyers are evident:

Research highlights the major risks (financial, operational, reputational) that may be at stake if tenure issues are not duly considered, even where national law is formally complied with (The Munden Project, 2013). Even when tenure transactions comply with national law, disputes may arise if the local population does not consider these transactions to be legitimate. A wave of large-scale land transactions for plantation agriculture has seen extensive contestation, and has been negatively characterized as “land grabbing”, even in connection with deals that were broadly in line with national law. Business lawyers that restrict their advice to legal compliance and neglect the Guidelines may leave their clients exposed to disputes and to damage to finances, operations and reputations.6

Furthermore, many international guidelines related to food and agriculture are in line with other soft law guidance and standards applicable to legal practitioners, such as the UNGPs, and reinforce the human rights principles enshrined in them.7 Legal practitioners should, therefore, ensure that international human rights, including the right to food, are respected in even the most “straightforward” legal transactions.

National law reform exercises

The IBA Business and Human Rights Guidance for Bar Associations (“the IBA Guidance”) suggests that:

Bar associations may wish to take appropriate steps to involve the legal profession in relevant public debates in order to implement business and human rights principles in domestic legislation, as well as in the work of international organisations, particularly the development or review of industry or issue specific principles and standards relating to business and human rights.8

In some jurisdictions, professional bodies already actively engage in law reform processes. Nevertheless, this engagement could be enhanced with respect to legislation affecting food, agriculture and other legislative efforts supporting achievement of zero hunger.

The private legal sector is in a position to bring a particular perspective which may facilitate the formulation of effective and ‘workable’ laws. Who advises clients on relevant laws and standards? Who acts for clients in negotiations? Who drafts contracts and other instruments? It seems clear that sectoral legislation, as well as more general framework laws, could benefit from the perspectives of private practitioners.

For example, should a country engage in amending the legal framework for contract farming, the inputs of private legal practitioners who advise on relevant transactions can provide important insights. While an agricultural production contract typically involves a producer of agricultural products and a contractor who commits to purchase, a contract farming transaction may involve, or rely upon, a number of contracts with, for example, banks for financing, suppliers of materials necessary for performance, contractors to process the product, and ultimately the vendors of the final product.9 These various transactions will touch upon many areas of law and regulation including, but not limited to, competition law, investment, intellectual property, environmental regulations, production standards, etc. Any national regulatory framework for contract farming must not only consider how to optimize these transactions, but also how to give effect to international obligations, such as those relating to the right to adequate food, the right to work, the right to healthy environment and the right to health, among many others. Engagement in the law reform process of the legal practitioners who will play part in implementing of any the new laws can support future effectiveness.

For the same reasons, the views by the private legal sector can assist consultations in international settings, for example, in discussions on the implementation of international standards promulgated by intergovernmental organizations. In the context of food and agriculture, all sectoral legislation affecting the enjoyment of the right to food is relevant. Laws relating to food safety, plant and animal health, investments in land, etc., in respect of which attorneys advise their clients, be they individual consumers, holders of legitimate tenure rights or agribusinesses are all relevant to the right to food.

Supporting the legal profession to uphold human rights, including the right to food

Efforts could be made to ensure that private legal practitioners are empowered and equipped to discharge their role in the context of the UNGPs, in particular, with respect to the right to food. For example, the importance of human rights considerations in all areas of private legal practice has, in some jurisdictions, been reflected in binding instruments that regulate the legal profession. Thus, regulations applicable to all advocates in Mainland Tanzania, clarify that:

An advocate has a duty to uphold human dignity in the conduct of the advocate's professional practice and this duty embodies the duty to respect and foster human rights and freedoms including, among other things, those set forth in the Constitution of the United Republic of Tanzania and any other law applicable.10

Along the same lines, the Code of Professional Conduct for Members of the Swedish Bar Association, specifies that:

An advocate must not give advice with the purpose of counteracting or circumventing human rights and basic freedoms covered by the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (with protocols). An advocate should in his or her practice of law also otherwise work to uphold human rights and freedoms.11

Reflection of fundamental human rights norms in professional codes of conduct serves to reinforce their application in the provision of legal services on a day-to-day basis.

The provision of appropriate training opportunities can also embed human rights principles in the ethical framework governing the legal profession. The IBA Guidance indicates, inter alia, that:

Bar associations may wish to consider assisting their profession through technical assistance and guidance to help them strengthen their institutional and human capacity to adopt more effective practices in the area of business and human rights.12

By introducing human rights principles – including those related to the right to food – into professional accreditation requirements such as CPD, regulatory authorities could encourage legal practitioners to develop relevant knowledge which will underpin the advice they give to clients.13

Interestingly, the importance of training for legal professionals to address global and developmental challenges has been recognized in the particular context of climate change. Thus, in the IBA Climate Change Justice and Human Rights Task Force report – Achieving Justice and Human Rights in an Era of Climate Disruption – recommendations include:

… that the IBA integrate climate justice training and courses into its existing platform of legal education, and that the influential IBAHRI, together with other components of the IBA, including its Environment, Health and Safety Law Committee, integrate training on climate justice and human rights issues into the support and technical assistance provided to judiciaries, newly established and/or under-resourced bar associations and law societies worldwide.14

Furthermore, bearing in mind that many training opportunities for the legal profession already address equality, diversity and access to justice, as well as other human rights, there is no obvious reason why they could not address human rights relevant to food and agriculture. Along the same lines, professional bodies could assist lawyers by developing information products. Smaller practices, particularly in developing countries, may be unable to access legal reference material as well as to dedicate resources to developing and reproducing materials to inform their clients on their rights and obligations.15

In the context of training and the development of communications products, governmental and intergovernmental institutions should explore collaboration with professional bodies. Not only could such collaboration provide access to an important audience, but could also support the sustainable achievement of their objectives, bearing in mind the potential long-term benefits to society at large generated by a greater understanding by legal practitioners of rights relevant to food and agriculture.

Conclusion

In conclusion, private legal practitioners are important promoters of international rights and standards, including those relating to food and agriculture. The active commitment of bar associations to address these rights and standards would have sustainable outcomes: a trainee lawyer who is introduced to fundamental principles in early career is likely to be guided by those principles throughout professional life; and an advocate who is offered specialist training has the tools to disseminate knowledge to his or her peers. A law firm which introduces appropriate internal policies will transfer the core principles to its clients. And, finally, an international organization which listens to and engages with private legal practitioners, amongst other stakeholders, is more likely to provide support and advice that is fit for purpose. This is particularly the case in respect of technically complex areas which are the subject of daily transactions, as is the case of many of the areas of law relevant to food and agriculture.

1. From https://www.ibanet.org/About_the_IBA/About_the_IBA.aspx (as at 16 October 2018). 
2. Available at https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf. 
3. Ibid. 
4. Available at: https://www.ibanet.org/LPRU/Business-and-Human-Rights-Documents.aspx
5. This is explored in, for example, “Due diligence, tenure and agricultural investment: A guide on the dual responsibilities of private sector lawyers in advising on the acquisition of land and natural resources”, to be published by FAO in 2018.
6. “Responsible governance of tenure and the law. A guide for lawyers and other legal service providers”, at page 79 (FAO, 2016). Available at http://www.fao.org/3/a-i5449e.pdf.
7. Guidance on applying human rights, such as the right to food, to particular policy and legislative areas has been prepared in recent years by FAO bodies, in particular the Committee on World Food Security. The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security are a case in point. While primarily addressed to States, they include provisions addressed to private sector actors, including lawyers.
8. Article 9. Available at https://www.ibanet.org/LPRU/Business-and-Human-Rights-Documents.aspx.
9. See “Enabling regulatory frameworks for contract farming”, FAO Legislative Study 111 (FAO, 2018), available at http://www.fao.org/3/I8595EN/i8595en.pdf. See also the UNIDROIT/FAO/IFAD Legal Guide on Contract Farming, (UNIDROIT, FAO and IFAD, 2015), available at http://www.fao.org/3/a-i4756e.pdf.
10. Article 120, Advocates (Professional Conduct And Etiquette) Regulations, 2018. Government Notice No. 118 published on 09/03/2018.
11. Provision 2.9. Available at https://www.advokatsamfundet.se/globalassets/advokatsamfundet_eng/code-of-professional-conduct-with-commentary-2016.pdf (as at 30 October 2018)
12. Article 6. Available at https://www.ibanet.org/LPRU/Business-and-Human-Rights-Documents.aspx.
13. An example of this approach is the training event on “Food Law in Europe” in 2017, organized by the Union Internationale de Avocats (UIA), which obtained official accreditation to qualify as 6 hours of legal training from the French Conseil National des Barreaux (CNB).
14. At page 156. Available at https://www.ibanet.org/PresidentialTaskForceClimateChangeJustice2014Report.aspx.
15. For example, texts along the lines of the UNIDROIT/FAO/IFAD Legal Guide on Contract Farming could be developed collaboratively. This is a reference text that is freely available and which provides specific guidance on how standard contractual clauses could be structured to reflect and/or meet international standards and principles. With respect to information products addressed to clients, see, for example, the range of brochure templates produced by the Law Society of South Africa for lawyers to make available to their clients, including for example “Your labour law rights. Protect yourself!”, “Consumer Protection Act”, and “Deceased Estates”, available at http://www.lssa.org.za/legal-practitioners/brochure-templates-for-attorneys (as at 16 October 2018).

Introducing real world lawyers to responsible agricultural investment

The Annual Conference of the International Bar Association (IBA) was held in Rome this year in mid-October. Building on an already established working relationship with the Agricultural Law Section of the IBA, FAO legal officers were able to speak to over 100 lawyers from around the world on FAO’s work on responsible agricultural investments, the Principles for Responsible Investment in Agriculture and Food Systems (RAI) and the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT).

The Agricultural Law Section of the IBA hosted a panel of experts during the Annual Conference to discuss approaches to sustainable investment in agriculture, covering a broad diversity of sustainable investment approaches in agriculture, from a legal perspective. FAO lawyers took this opportunity to present the new legal guide on responsible agricultural investment1 specifically aimed for lawyers working for private sector clients.

As reflected in the legal guide, private sector lawyers have dual responsibilities. On the one hand, they must support and advise their business clients in complying with the international human rights law and standards, including those addressed in the VGGT and CFS-RAI and, on the other, they must themselves as lawyers act in accordance with UN Guiding Principles on Business and Human Rights, which apply to lawyers and law firms as businesses in their own right.

Private companies can expand the scope of due diligence and risk assessment processes that will always underpin investment decisions to include the CFS-RAI and VGGT guidelines. Due diligence, which is a key element of the UN Guiding Principles on Human Rights, the VGGT and the CFS-RAI principles, is the process of acquiring objective and reliable information, generally on a person or a company, prior to a specific event or decision. The role of lawyers as wise counsellors and the potential this gives to them for exercising leverage on their clients while performing their due diligence and risk assessments cannot be underestimated. Lawyers can in fact play an instrumental role in ensuring that due diligence processes are conducted consistently with relevant legal standards and best practices on sustainable agricultural investment.

The new guide sets out the exact parameters of due diligence required in the above described context and the specific duties that arise for companies and their lawyers at the key stages of an investment process where a due diligence exercise is conducted. These include:

(i) mapping of the potential impacts of proposed investments and ensuring that tenure right-holders and human rights issues are identified and addressed;

(ii) advising on/conducting impact assessments and early and meaningful public consultations and participation, including free prior and informed consent, as appropriate;

(iii) drafting contracts and agreements with stakeholders;

(iv) reporting, tracking and monitoring of impacts.

The need to address/respond to concerns about harassment of human rights defenders and potential violations of their human rights are also addressed in the legal guide which, in LEGN’s view, will be a useful mechanism with which to sensitize the private sector through their principal interlocutors who are usually their lawyers.

The IBA panel session provided a rare, and much valued, opportunity for exchanges of views between lawyers from different areas of the profession. The development of the new legal guide, and the IBA panel session, confirmed that there are important and substantive connections between the public and private practice of law.

1. “Due diligence, tenure and agricultural investment: A guide to the dual responsibilities of private sector lawyers advising on the acquisition of land and natural resources”, by Kate Cook, Matrix Chambers, for the Development Law Service, publication forthcoming.

The status of indigenous land tenure in the midst of national land reforms

FAO has been at the forefront of efforts to protect indigenous land tenure rights so as to ensure that rural dwellers have appropriate access to land for agriculture to meet the needs of food security and decent livelihoods. To this effect, FAO has issued various multilateral guidelines governing tenure rights.1 This article is intended for the appreciation of all who are interested in the discourse of giving validity to the customary ways in which indigenous people hold land, amidst formal legal systems. Particularly, it also addresses the Nigerian Land Use Act of 1978 and how this land reformation effort affects forms of indigenous tenure in the country.

The proliferation of the discourse on the recognition of the tenure for customarily held lands demonstrates the relevance of this topic in the current environment of strengthening indigenous food systems and traditional knowledge. The need to recognise that customary law possesses unique features, that qualify it as a distinct legal system, has never been greater. Such recognition would go a long way in ensuring the protection of the customary law of indigenous people. Where indigenous land tenure is not recognized as a sui generis right, there is a risk of losing years of intricately established traditional knowledge, which may contain answers to contemporary problems which an Organization like FAO, for instance, faces in the fight against global hunger.

The hallmark of legal systems in most developing States is that modern and ancient forms of law, so-called formal and informal legal regimes, continue to co-exist and to assert themselves.2 The land tenure systems in these societies are a reflection of customary law practices, a colonial past and contemporary issues. These factors have produced a mixed system of sorts (to be differentiated from the mixed system of Civil and Common Law jurisdictions under comparative law jurisprudence) which were mostly formed as a result of successive waves of colonization by powers governed by either the Civil Law or Common Law. 3

One of the results of the presence of both formal and customary law within a State has been frequent land reform. Considering that many indigenous cultures in Sub-Saharan Africa are agrarian and that a sizeable chunk of land area within the African continent belongs to rural communities4 , land reformation programmes are very relevant and necessary. Experience has shown that such programmes have either recorded strides or have raised more questions than certainties. Moreover, the politically sensitive nature of land issues within a State entails that the legal protection (or lack thereof) afforded to indigenous land tenure systems under national law is constantly revisited, and that land regulations are frequently reviewed to ensure that the will of indigenous peoples is properly manifested in the face of the prevailing legal systems.

Nigeria, driven by the need for agricultural development at a time when the nation's agricultural production was considered to be thwarted by the unavailability of rural land for commercialized agriculture, underwent major land reforms which resulted in the 1978 Land Use Act (the Act).5 The Act streamlined land tenure in the country and, amongst other things, replaced the freehold tenure (land ownership which endures in perpetuity) with a leasehold tenure (of a maximum duration of 99 years).6 It also entrusted all rural and urban lands to the various local governments and state governors, respectively. The Act recognizes and allows indigenous land tenure tout court. It is important to note, on the other hand, that indigenous land tenure, depending on the respective custom, may in turn foresee various kinds of tenure, including freehold, leasehold and even pledging (customary mortgage).7 In addition, there is little evidence of proper legal communication of the provisions of the 1978 Act to landowners and especially to rural dwellers who hold land under indigenous forms of tenure. The scarcity of real property jurisprudence on this issue has not helped in the understanding of the extent of impact of the Act on freeholding rights of indigenous land tenure holders. Complications sometimes arise during expropriation of rural lands for mining, oil and natural gas exploration or agricultural development (the latter being the underlying reason for the original land reform). These complications are mitigated by political means, and are usually not different from the problems associated with State expropriation of land anywhere else. Nevertheless, there is room for improvement with regards to the Act and the specificities of indigenous land tenure.

Recently, Liberia has progressively concluded a land reformation exercise which poses to give indigenous communities greater rights over customary land.8 This exercise sees the affirmation of one of the salient hallmarks of indigenous land tenure, i.e. comunal tenure. Interestingly, previous reformation exercises in Ghana, India, Jamaica, among others, have all allowed for freehold tenure thus enabling indigenous land tenure to have its unique place within the legal system.

The need to have recognition, or at least acknowledgement of indigenous land tenure forms, is one which is germane and imperative, as it will open a path to proper understanding of indigenous agricultural practices,9 and also record a win for comparative law. It is important that this conversation continues.

For more information, please contact Mr Okoo Uka.

1. http://www.fao.org/indigenous-peoples/our-pillars/vggt/en/ 
2. See Glenn, H. P.; Legal Families and Legal Traditions, in The Oxford Handbook of Comparative Law (2006), p. 436.
3. Reid, C.; The Idea of Mixed Legal Systems (2003) Tulane LR 7-8.
4. FAOSTAT reports the agricultural land area in Nigeria to be 708,000 km2, out of a total land area of over 900,000 km2. This means that over 77% of the land mass in the country is used for agriculture. A large percentage of this agricultural land is in the rural areas and governed by customary law.
5. Utuama, A.; Nigerian Law of Real Property, (2012, Malthouse), p. 265.
6. Issues emanating from this leg of the Act are dealt with in the political realm. There has been little or no jurisprudence on the duration of the leasehold under this Act.
7. Okany, M. C.; Nigerian Property Law (2000), notes that rural cultures in South Eastern Nigeria mostly preferred a pledge of land over an outright transfer.
8. The Liberian Land Rights Act, recently signed into law in September 2018.
9. For instance, the fundamentals of the "Kola Tenancy" in cultures within South Eastern Nigeria which arose from a lease practice involving Kolanut Trees has been advanced to study and apply to other indigenous leases and pledges.

Climate change in Sri Lanka – impacts and responses

Guest contribution by Ms Kumari N. Vithana1

Sri Lanka is a small island state that is under serious threat from climate change impacts. Sri Lanka’s biodiversity is significant, both on a regional and global scale as it has the highest species density for flowering plants, amphibians, reptiles and mammals. Sri Lanka’s varied ecosystems are of significant economic value and play a crucial role in providing goods and ecosystem services.

The article gives an overview of some of the legal and policy instruments issued in Sri Lanka that are seen as a positive step towards conservation of these essential ecosystems and biodiversity. While Sri Lanka has been implementing various initiatives to contribute to the preservation of natural habitats for plant and animal species, as a developing country with many economic challenges, the funds and expertise available for monitoring climate change impacts and for biodiversity conservation are not sufficient.

Sri Lanka is subject to tropical climate patterns. As such, it is highly vulnerable to climate change impacts. Extreme weather events such as high intensity rainfall followed by flash floods and landslides, and extended dry periods resulting in water scarcity, are now becoming common occurrences in Sri Lanka. Any adverse changes in already volatile weather patterns are likely to have an adverse impact on the socio-economic activities in the country. Urgent action is necessary to take adaptive measures to build resilience in various sectors, notably the agriculture sector. Sri Lanka is an active participant in international responses addressing both mitigation and adaptation efforts. While prioritizing climate adaptation measures, Sri Lanka is actively involved in the global mitigation efforts to minimize greenhouse gas emissions within the framework of sustainable development and the principles enshrined in the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol (KP) and the Paris Agreement. 

National measures taken so far

The ‘Green Lanka Programme 2009’ and the ‘Caring for the Environment: Path to Sustainable Development Action Plan 2008-12’ (MoENR, 2008-12) highlights addressing the adverse impacts of climate change as a priority area. Several Government departments and research institutions are engaged in studies to understand and manage climate change impacts, and to identify the optimal policy, technical and grassroots interventions.

As part of its obligations under the UNFCCC, Sri Lanka submitted its Initial National Communication in 2000 and work on the Second National Communication was completed by the end of 2010. Although not required to do so under the UNFCCC, Sri Lanka has voluntarily taken measures to engage in climate change mitigation activities, including involvement in carbon trading through the Clean Development Mechanism (CDM).2

Climate change is a complex phenomenon with impacts spread over all sectors of the economy and every strata of the society. Sri Lanka (GOSL) recognizes that working towards mitigation alone will not protect its national interests and that, given the scale of the threat Sri Lanka faces, a focus on adaptation is critical. Therefore, some scoping is necessary to identify and organize adaptation actions against climate change impacts. According to UNFCCC guidelines, there are no standard frameworks proposed for scoping of impacts and organizing adaptation actions. Scoping of National Adoption Plans (NAP) has to be done according to the specific circumstances of respective countries.

With this in mind, the Ministry of Environment launched an ambitious planning process, involving a cross section of government agencies, to develop Sri Lanka’s first National Climate Change Adaptation Strategy (NCCAS). The NCCAS lays out a framework that is specific for Sri Lanka to promote and support the building of climate resilience amongst stakeholders across the economy.

Some examples of legislation that has been passed in these areas are:

  • Coast Conservation and Coastal Resources Management Act (57 of 1981, 64 of 1988, 49 of 2011)

  • National Environmental Act (EIA process, EPL process); Act No. 47 of 1980

  • Marine Pollution Prevention Act; 2008

  • National Energy Policy - Sustainable Energy Authority Act, 2007.

Key needs

Based on current understanding of climate change impacts as applicable in the Sri Lankan context, the needs can be broadly categorized as described below. The Sri Lanka National Adaptation Plan (NAP), prepared pursuant to the Paris Agreement, is intended to address adaptation needs within a realistic timeframe.

Adaptation needs specific to key sectors:

Consultations with key stakeholders and experts at the preparatory stage of the National Adaptation Plan helped to identify nine critically important sectors in Sri Lanka in terms of vulnerability to climate change impacts and the need for adaptive actions. Usually, these sectors are serviced by established line ministries and agencies (e.g. Food security sector: Ministries for Agriculture/Livestock/Fisheries and associated line agencies; Health sector: Ministry of Health and line agencies). Consultations also helped to identify priority areas within each sector that require specific adaptation action. In the identification of sectors and priority areas within them, attention was also given to aligning them with the organizational structures of line agencies responsible for the respective sectors, to the extent possible.

Food security is one of the most critical areas requiring special attention in the context of climate adaptation in Sri Lanka. Key components that contribute to food security in Sri Lanka are rice, other food crops, fruits and vegetables (horticultural crops), animal production and fisheries. The country has achieved self sufficiency in rice. However, it depends on imports for a number of other food products. Hence, agriculture development efforts in the country are mainly targeted at achieving self-sufficiency or reducing the import bill for at least the main categories of food such as milk, milk products and sugar. The relative contribution of the agriculture sector to the national economy has decreased to around 10 % of GDP. However, agriculture still occupies around 30% of the workforce and a significant share of farmers live in poverty. Of all the economic sectors, agriculture is the most climate sensitive and climate related hazards have significantly affected agricultural production and farm assets in recent years. Hence, high climate sensitivity and the dependency of a large section of the population on agriculture for its livelihood makes food security a highly vulnerable sector to climate change impact, requiring special attention in the National Adaptation Plan.

The Coastal and Marine Sector. Sri Lanka is an island nation surrounded by a low-lying coastal belt. Around a third of the country’s population is concentrated in the costal belt. There are several townships located in the coastal zone and relatively well developed infrastructure facilities are found in those areas. Fisheries and tourism are among the significant economic activities in the coastal zone and numerous fishing villages, harbours and anchorages are located around the country. Nearly a quarter of a million families make their living on coastal and offshore fishing. The coastal belt is rich with numerous coastal and marine ecosystems. Inland from the beach zone, fertile strips of rice and coconut lands are found which support the food security and export earnings of the country. Overall, coastal areas contribute to the country’s economy significantly and a large share of the population is dependent on them. Sea level rise, a major physical effect associated with climate change, is likely to create significant impacts in coastal areas. The 2004 tsunami showed that Sri Lanka’s low-lying coastal areas are highly vulnerable to inundation. Besides, the rising incidence of extreme and unpredictable weather events has created uncertainties over costal livelihoods sometimes even causing damage to property and human casualties. Hence, adaptation in coastal and marine sectors will be critical for the country’s sustainable development as a whole as well.

Conclusion

As briefly described in this article, Sri Lanka is taking active steps to urgently address the challenges presented to it by climate change. Climate change impacts are significant to Sri Lanka, as a small island State which has enjoyed and relies upon a rich biodiversity. For this reason, the formulation of policies and strategies addressing adaptation and mitigation, and steps to develop and implement approaches in line with these policies and strategies, are being pursued as a priority.

1. Ms Vithana is an official of the Department of Fisheries and Aquatic Resources of the Government of Sri Lanka. She has been undertaking a 3 month specialist advanced studies on fisheries and aquaculture law with the Development Law Service at FAO HQ.
2. This initiative is supported by the Japan International Cooperation Agency (JICA) through a technical assistance project. 

The certification process for treated wood packaging material (WPM) used in international trade: a brief explanation of the scope of the “ISPM 15 Mark”

We usually are interested in what is inside a package but disregard the packaging itself. However, packaging should not be ignored as wood packaging material (WPM) – such as crates and pallets – move within or between countries, and is used in almost every aspect of commerce. WPM’s potential to transport pests is high, as it provides a suitable habitat for them. The spreading of exotic pests to new areas, increased spreading of native pests and the transfer of bacteria, viruses and other pathogens by exotic or native pests, are among the many risks that can arise in this context. The consequences on agricultural and forest resources, sometimes destructive, are known and well documented in several studies and pest risk assessments. 1

To reduce the risk of introduction and spread of so-called “quarantine pests” through the commercial movement of WPM between countries, the Commission on Phytosanitary Measures (CPM) of the International Plant Protection Convention (IPPC), a body established under Article XIV of the FAO Constitution, adopted the International Standard for Phytosanitary Measure No. 15. Its revised version, “Regulation of wood packaging material in international trade”, was adopted in 2009 (ISPM 15) .2

In a nutshell, the ISPM 15 describes internationally accepted measures that may be applied to WPM. Its purpose is to significantly reduce the risk of introduction and spread of most quarantine pests that may be associated with WPM. It does this by establishing the types of internationally recognized treatments for WPM to be used in international trade, as well as the processes for their implementation, and preventing the use of non-approved phytosanitary measures. WPM treated in accordance with ISPM 15, bears the internationally recognized “ISPM 15 Mark”, shown in the picture. It includes: 1) the IPPC certification symbol; 2) the two-letter ISO country code; 3) a three-digit number which is the unique certification number identifying the treatment provider or wood packaging manufacturer; and 4) a two-letter code representing the WPM treatment abbreviation: HT for heat treatment; MB for fumigation with a chemical agent - methyl bromide; and DH for heat treatment using dielectric heat. Other related information may also be included outside of the border of the mark, but this does not constitute an integral part of the ISPM 15 Mark.

The IPSM 15 Mark applied to WPM verifies that it has been treated and is free of plant pests in compliance with ISPM 15. This facilitates international trade; shipments containing ISPM 15-compliant WPM are immediately allowed to enter a country with no further export treatment required. By contrast, on intercepting WPM that does not comply with ISPM 15, importing countries may take action, through detention, removal of non-compliant material, treatment, destruction (or other secure disposal) or reshipment to the exporting country.

Since 2002, ISPM 15 has been implemented through the joint action of Member Countries and FAO, through its Legal Office and the IPPC Secretariat, driven by a common interest in ensuring proper implementation of ISPM 15 and use of the ISPM 15 Mark developed under its framework. ISPM 15 guarantees the harmonization of the WPM certification system worldwide. To date, 183 countries have adopted ISPM 15. Many of these countries have already enforced ISPM 15 by incorporating its requirements into their national laws.

Member Countries and FAO are committed to act together to effectively promote the movement of ISPM 15-compliant WPM in international trade, mitigate pest risks and avoid agricultural crop and other losses. The safety and credibility of the international trade system benefits from the implementation of ISPM 15. Furthermore, the protections provided by ISMP 15 support the efforts of each country to achieve food security.

1. Explanatory Document for ISPM 15 (Regulation of wood packaging material in international trade), Shane Sela et al. under the auspices of the IPPC Secretariat, 2014 https://www.ippc.int/static/media/files/publication/en/2017/02/ISPM_15_ED_En_2017-02-10.pdf.
2. https://www.ippc.int/static/media/files/publication/en/2016/06/ISPM_15_2013_En_2016-06-07.pdf.

Webinars on legal services for development

In June 2018, the Development Law Service of the FAO Legal Office (LEGN) launched a knowledge sharing and exchange initiative that primarily aims to support colleagues in decentralised offices in their work. The sessions outline the connections between law and areas such as sustainable food and agriculture systems, protection of vulnerable populations and of the environment, just to mention a few. Through his medium, technical experts can better understand the important role that sound legal and institutional frameworks can play in underpinning and enforcing the achievement of developmental objectives. To date, the Service has hosted eight sessions in three official languages (English, French and Spanish)  with over 200 participants in total. Past sessions are available to anyone who may be interested via YouTube, and can be accessed through a link from the FAO website (http://www.fao.org/legal/home/legal-office/en/).

These sessions have focused on legal services for development in the context of FAO regional and country priorities. Themes featured so far include corporate priority areas such as Climate Change, the Port State Measures Agreement and IUU fishing and Legal Assistance to Parliamentarians.

The latest webinar in early November took a very practical focus and sought to identify entry points for legal components to technical activities. Based on the level of exchange and feedback received at this Webinar, we were pleased to note the success of our initiative in raising awareness that legislative and institutional results not only reinforce technical results and support their sustainability, they can also drive their realisation. We believe that this session is not only relevant to FAO personnel, but also to anyone involved in developing projects and programmes and who wants to ensure the sustainability of the results of their efforts.

In the coming months, a number of new sessions are planned on topics ranging from Contract Farming to Antimicrobial Resistance (AMR). We also intend to deliver future sessions in other FAO official languages. As is the current practice, efforts will be made to schedule sessions to accommodate the different time zones to cater for audiences in Asia and the Americas.

If you would like to suggest future topics, or have participated in one of the LEGN Webinars and wish to send us your feedback, please write to [email protected].

If you would like information on how to sign up to participate in a session, please send a message to the same e-mail address.