COP 15 and COP19 - the good cops of global international law for wildlife.

COP15 and COP19

The term "COP" simply stands for the Conference of the Parties to an international convention, of which there were three in 2022 relating to the natural world - COP27 for climate change, COP19 for wildlife conservation and COP15 for biodiversity.

The Convention on the International Trade of Endangered Species of Flora and Fauna ("CITES") is the Convention adopted to protect and conserve wildlife. CITES was signed in Washington on 03 March 1973 and entered into force on 01 January 1975. CITES was drafted to protection wildlife by ensuring it never becomes subject to, or remains subject to, unsustainable levels of exploitation due to international trade. As such, CITES governs the international trade (import, export, re-import) of live and deceased animals and plants, parts of animals or plants or derivatives of species. The COP to CITES meets every two to three years and most recently met in Panama at CITES COP19 from 14-25 November 2022.

The Convention on Biological Diversity (the "CBD"), adopted on 05 June 1992 at the Rio "Earth Summit" and entered into force on 29 December 1993, is the "international legal instrument which aims to conserve biological diversity, ensure sustainable use of biodiversity and equitable sharing of the benefits arising from the utilisation of genetic resources”. The CBD covers all aspects relating to biodiversity both directly and indirectly. There are 196 signatory nations, whose delegates meet every two years to discuss matters relating to the CBD and to set targets moving forward to ensure the sustainability of biodiversity. From the 7-19 November, the COP to the CBD met at COP15 to degree new goals beyond 2030 to halt and reverse biodiversity loss.

Both conferences were pivotal to ensuring the protection of the natural world, particularly against the greater attention being placed on the failures of COP27, related to climate change, held in Egypt in November 2022.

The biodiversity landscape leading up to COP15 and COP19:

The World Wildlife Fund's Living Planet Report 2022 sets out that biodiversity levels have declined by 69% globally since 1970. By region, biodiversity has declined 94% in South America, home of the Amazon rainforest which has the highest density of biodiversity anywhere in the World, 66% in Africa, 55% in Australia and 18% in Europe. Similarly, freshwater species populations have declined by 83% globally and 17% of the original extent of the Amazon rainforest has been lost and a further 17% degraded. With regards to wildlife, one million plants and animals are threatened with the prospect of extinction, with 1-2.5% of all birds, mammals, amphibians, reptiles and fish already extinct. 50% of warm water coral reefs have been lost due to rising temperatures which make the reef biome unviable[1].

If that picture is not alarming enough in and of itself, from a commercial perspective The World Economic Forum’s paper on “Nature Risk Rising: Why the Crisis Engulfing Nature Matters for Business and the Economy”[2] makes clear the threats that biodiversity and the natural world are facing because of the climate crisis and human impact. The report makes clear that we have impacted and severely altered 75% of land and 66% of marine environments. Around 25% of plant and animal species are threatened by human action and over 1 million species face extinction and ecosystems have declined in size and condition by 47% globally compared to estimated baselines.

The G7 report: “Biodiversity, Natural Capital and the Economy: A Policy Guide for Finance, Economic and Environment Ministers”[3], explains that ecosystem services are worth an estimated $124-149 trillion annually and more than 1.5 times greater than the size of the global GDP. The cost of allowing biodiversity to collapse will also result in economic loss, and indeed already has, with an estimated loss of $4-20 trillion from 1997-2011 and a further $6-11 trillion caused from land degradation.

WWF's Living Planet Report makes clear that we are living well beyond the capacity of the earth, which has a bio-capacity of about 1.6 global hectares per person. Currently, we are living off of more than 6.4 global hectares per person, almost 4 times the amount which is sustainable[4]. Living beyond the sustainable bio-capacity of the earth is damaging our natural ecosystems, the biodiversity within them and is depleting our natural capital resources which will lead to serious financial consequences. This was the backdrop to both COP15 and COP19 at the end of 2022.

(C) World Economic Forum

Results coming from COP19:

COP19 ended on 25 November and is largely to be regarded as a positive outcome for the protection of wildlife and the regulation of the international trade in species of animals and plants.

Some of the main points which arose from the conclusion of COP19 include:

Pangolins

A consensus to close the domestic markets globally, but with particular relevance to China and the far east, of pangolin parts and derivatives. While this was heavily contested by China, which sought to introduce more relaxed language based on non-interference with domestic markets from a national sovereignty perspective, ultimately the COP voted 82% in favour of closing domestic markets. This is a significant step in trying to tackle the illegal trade in the critically endangered 8 pangolin species, of which more than 1 million have been trafficked over the last ten years for their scales which are used for leather products, primarily in the United States and Mexico and in Asian cultural medicine, despite there being no medicinal properties to be derived from pangolin scales.

Tigers:

The greatest threats to the survival of all tiger subspecies are the trade in live tigers, be they captive bred or poached illegally from the wild, and the growing trade in tiger parts and derivatives. Previously the trade in their skins was common, as they were used in traditional dress and shown as a sign of status in certain cultures. However, the trade has evolved, and the entire tiger body is now being used to make tiger bone wine and tiger glue, which is both used as a symbol of status, but, also as a traditional medicine or aphrodisiac.

The COP14 set out in Decision 14.69 imposed serious measures on Parties with intensive breeding programmes (Viet Nam, Laos, Cambodia, Myanmar, and China) and stated that “tigers should not be bred for trade in their parts and derivatives”. Laos was required to undertake audits of its captive tigers and to close illegal farms of tigers. However, many conservationists have and still do try to show the CITES Standing Committees that the reality is far from this and that the illegal trade and farming of tigers for commercial purposes still goes on at an alarming rate and scale (see previous blog here).

While the COP did not agree any further documentation, Parties will meet in November 2023 to report on the progress of COP14's initiatives at the CITES Standing Committee 77. Similarly, the CITES mission taskforce to examine tiger trade, farming and adherence to regulations and COP14 are taking place this month in Thailand, Laos and Viet Nam, with further scheduled (including in Europe, as the Czech Republic is also a country of concern for the illegal tiger trade).

Rhinos and elephants:

For the third COP in a row, Eswatini submitted a proposal to amend the listing for its population of southern white rhinos to allow for legal international trade in rhino horn. Similarly, proposals were submitted by Zimbabwe to allow for the resumption of the trade in raw ivory products from Southern African elephant populations to offset the costs of conservation in these countries which had previously seen a serious decline in elephant populations as a result of ivory poaching.

Both proposals were rejected and are significant victories for rhinos and elephants which are still subject to serious levels of poaching for their tusks and horns. EIA International notes that there were clear and stark divides at COP19 relating to ivory trade, particularly elephant ivory. The Southern African countries, which have very stringent conservation efforts placed upon them to boost wild elephant populations wished to water down the CITES requirements, to soften the bans on ivory trade and gain revenue from sale of ivory, whereas northern countries did not wish for any softening which would undermine progress made to restore populations. Similarly, the Western and Central Block, particularly Nigeria which has a hub for illegal wildlife trade, strengthened its legislative resolve to tackle corruption and tackle international co-operation to prevent illegal international trade in wildlife species and their derivative parts, as a significant amount of illegal ivory leaves from Nigeria.

(c) CITES

Results from COP15:

COP15 ended on 19 December 2022 with the adoption of the Kunming-Montreal Global Biodiversity Framework ("GBF") which aims to address biodiversity loss, restore natural ecosystems and to protect indigenous rights, including the 30x30 commitment to protect 30% of the planet and 30% of degraded ecosystems by 2030.

The GBF has four main goals (A-D), which include within them overarching considerations such as:

-ensuring the integrity, connectivity and resilience of all ecosystems are maintained, enhanced or restored, to substantially increase the area of natural ecosystems by 2050;

-human induced extinction of known threatened species to be halted and by 2050, extinction rate and risk should be reduced tenfold;

-sustainable use of biodiversity including the restorations of ecosystems services and functions which are in decline;

Adequate means of implementation, including from financial resources, capacity building, technical and scientific co-operation and access to and transfer of technology to fully implement the framework's goals.

To achieve these goals, the delegates agreed on a variety of agreements and targets, including:

• Monitoring and reporting: delegates agreed to put in place national action plans which will be periodically reviewed to ensure that goals and targets are being implemented and progressed. The aim is to avoid the same failures that accompanied the targets set at COP10 known as the Aichi biodiversity targets, where no single target was achieved.

• Impact reporting by companies: similarly, it was agreed that large companies should also report on their impacts on biodiversity. This will be achievable with the Taskforce on Nature-Related Financial Disclosures, which is a new global market-led initiative aiming to provide financial institutions and corporates with a complete picture of their environmental risks and opportunities, following in the footsteps of the Taskforce on Carbon-Related Financial Disclosures. The TNFD has listed priority sectors where specific sector guidelines will be produced, these have been chosen due to these sectors being more likely to be susceptible to financial impacts due to their dependency on natural resources as part of their global supply chain or business, as well as the opportunities to improve the impact on nature, including infrastructure, healthcare, consumer goods and transport. The TNFD will finalise its disclosure recommendations by September of this year and will go towards ensuring relevant companies and institutions report their impact on biodiversity.

• Finance for nature: delegates also agreed to aim to ensure that $200 billion of both public and private sector money each year be utilised for conversation initiatives, with more economically developed countries contributing at least $20 billion of this each year by 2025, increasing to $30 billion yearly by 2030. However, any country which decides to "voluntarily assume" similar obligations, are expected to increase their international finance flows substantially and progressively for nature by similar sums. The aim of the goal is to reduce the biodiversity finance gap which stands at roughly $7000 billion per year and a new "Special Trust Fund" called the Global Biodiversity Framework Fund will be established in 2023 until 2030 to support this goal.

(C) COP15

Challenges to achieve the outcomes from COP15 and COP19:

The challenges for both COP15 and COP19 are enforcement and measurement.

Enforcement is very hard on an international level with international frameworks that require monitoring and progress reports. Taking COP19's progress on tiger farming into consideration, it has been hard to implement enforcement in the Golden Triangle countries where illegal trade and breeding of tigers persists despite the COP14 and beyond work to ban tiger breeding, farming and sale. Illegal wildlife trade continues to generate between $7 billion and $23 billion per year, making it the fourth largest illegal global trade behind drugs, counterfeiting and human trafficking, despite the work to tackle it.

CITES' illegal wildlife trade report 2020 noted that almost every country in the world is "playing a role in the illicit wildlife trade" and notes that illegal wildlife traders do not limit themselves to the trade of a single species instead there is a "confluence of markets", particularly of ivory and pangolin scales. As the CITES report notes, “Organised crime groups are flexible and can easily adapt to new restrictions, regulations and enforcement measures that may reduce opportunities to maximise profits". When domestic legislation is poorly enforced, with weak penalties and is received by low levels of domestic support (for example, with China's protestations about the longevity of CITES' remit over its domestic pangolin markets based on the argument on national sovereignty), it is an extremely difficult task to enforce international and domestic legislation to protect wildlife.

With regards to COP15, enforcement is also an issue. With none of the COP10 Aichi biodiversity targets being met, enforcing the outcomes of COP19 through domestic legislation, where possible, may help achieve better progress with the GBF. However, this will depend on the level of regulation and enforcement of reporting requirements. With the introduction of the Taskforce on Nature Related Financial Disclosures, a new global market-led initiative aiming to provide financial institutions and corporates with a complete picture of their environmental risks and opportunities, it is hopeful enforcement will be less of a concern for the outcomes of COP19.

However, measurability will be an issue. Most of the targets lack a form of measurable biodiversity indicators, which may result in a significant weakness for COP15's ambitious targets and may result in progress being more limited than hoped.

Conclusion:

While COP15 and COP19 certainly were the good cops of 2022's international law, particularly when you compare them to the underwhelming outcomes of the climate conference, COP27, it is clear that both the wildlife COP and the biodiversity COP have their work cut out. Given the dire state of play which was the bakdrop to which both conventions met at the close of last year, serious enforcement, commitment and closing of any weak spots is critical to protect the natural world going forwards.

We can only hope that both COPs meet their targets, and the natural world will start to revive. By 2030 will we see a world with thriving biodiversity and wildlife thriving in a sustainable way? No one can predict this, but we must go forwards believing this will be the reality.

[1] https://livingplanet.panda.org/en-GB/ [2]https://www3.weforum.org/docs/WEF_New_Nature_Economy_Report_2020.pdf [3]https://issuu.com/oecd.publishing/docs/full-report-env-policy-paper-no-26-biodiversity-na [4]https://livingplanet.panda.org/en-GB/