3 Protected Areas under the Convention on Biological Diversity in International Investment Law: Conflicts and Solutions

To Achieve Big Wins for Terrestrial Conservation, Prioritize Protection of Ecoregions Closest to Meeting Targets

Underprotected Marine Protected Areas in a Global Biodiversity Hotspot

Integrated spatial planning for biodiversity conservation and food production

Establishing systems of protected areas (PAs) and other effective area-based conservation measures (OECMs) is a key strategy to reversing biodiversity loss (CBD SBSTA, 2021; Maxwell et al., 2020). As part of its mandate to safeguard biodiversity, the UN Convention on Biological Diversity (CBD) provided clear international targets on establishing PAs and OECMs in 2010. Aichi Target 11 called for the protection of 10% of marine and 17% of terrestrial areas globally (CBD, 2010). These percentages were interim targets to encourage ambition while ensuring tractability and not necessarily based on conservation needs (Woodley et al. 2019). There is general consensus that the percentages behind Target 11 were insufficient to protect all important aspects of Earth's biodiversity. Proposed replacement percentages range from 28% to 80%, depending on the desired outcome (Butchart et al., 2015, Dinerstein et al. 2019, Woodley et al. 2019, Jones et al., 2020). As the CBD finalizes its post-2020 strategic plan - the Global Biodiversity Framework (GBF) - there is consensus that it must include more ambitious area-based targets paired with stronger implementation mechanisms (Visconti et al., 2019; Maxwell et al., 2020). Most lessons learned from the outcomes of Aichi Target 11 relate to the suitability of its environmental targets, potentially obscuring how it affected social equity (the absence of avoidable and unfair cost and benefit distributions) (McDermott et al., 2013). The power to implement CBD targets lies with countries through their national biodiversity strategic and action plans (NBSAPs). Whether targets are achieved equitably depends on decision-makers within national borders. However, global conservation is inherently a transboundary pursuit; costs of environmental degradation and benefits of conservation spill over borders (Mason et al., 2020; Roberson et al., 2020). Geopolitical states have high variability in the numbers of threatened species and habitats within their borders and varied abilities to conserve based on financial capacities, conflict, and collective attitudes toward conservation. These realities require consideration of equity beyond the local scale to equity among geopolitical states in global conservation efforts (Sarkki & Garcia, 2019). To date, the CBD has emphasized equitable benefit sharing, or the fair distribution of benefits from the harvest or study of biological resources (Nagoya Protocol). There has been less emphasis on equitable cost-sharing, which includes direct costs of establishing and managing PAs and opportunity costs of not undertaking certain economic activities (e.g., agriculture) in PAs (Naidoo & Iwamura, 2007). Costs pose significant short-term barriers to halting biodiversity loss (Waldron et al., 2013; Maxwell et al., 2020). Once adequate financing and equitable cost-sharing are achieved, long-term revenues and ecosystem services of most PAs are projected to exceed implementation and opportunity costs (Waldron et al., 2020). However, interventions are still needed to alleviate the short-term costs certain groups may bear. Although the CBD does not legally require that countries implement equitable cost-sharing, finalization of the GBF presents an opportunity to apply social equity concepts to its revised area-based conservation strategy for just and effective implementation. We highlighted this opportunity by identifying lessons learned from Aichi Target 11 through the lens of social equity theory. We then devised recommendations on how to approach equitable cost-sharing among countries for PAs in the post-2020 GBF.

Indicators keep progress honest: A call to track both the quantity and quality of protected areas

Fair and equitable treatment is a central norm in international investment law. This norm is contained in the vast majority of international investment agreements as one of the main standards for the protection of foreign investors. Historically, international investment agreements contained short and general clauses of fair and equitable treatment, which were formulated either as free-standing provisions with a reference to general international law, or to the international minimum standard of customary international law. Especially since the first decade of the 21st century, drafting approaches to fair and equitable treatment became increasingly diverse and generated complex and elaborate clauses seeking to address the different elements of the norm that have developed over time. The drafting approaches reflect the long-standing controversies with regard to fair and equitable treatment and the question of whether this concept is to be constructed in accordance with the international minimum standard or as an independent and self-contained standard possibly exceeding customary international law. Both concepts have remained vague and have created difficulties in the interpretation of fair and equitable treatment, which due to its general character became a prominent cause of action in investor-state arbitration proceedings. The evolution of arbitral jurisprudence stimulated the emergence of different elements of fair and equitable treatment, including the protection of the investor’s legitimate expectations, the protection against discrimination and arbitrary treatments, and the principles of due process, denial of justice, and transparency. The increasing number of cases on the basis of fair and equitable treatment also led to concerns and criticism that a far-reaching concept of the norm would threaten the host states’ sovereignty and their right to regulate, as well as the principle of sustainable development. These concerns and the fact that a growing number of investment disputes were brought against developed countries motivated first the North American Free Trade Agreement member states and subsequently other states and the European Union to adapt their international investment agreements in order to try to concretize the concept of fair and equitable treatment and to limit the discretion of arbitrators. The concept of fair and equitable treatment has also received considerable attention by scholars who propose a variety of different approaches to the interpretation of the norm and the balancing of the conflicting private and public interests at stake.

Achieving global biodiversity goals by 2050 requires urgent and integrated actions

The ecosystem approach—as endorsed by the Convention on Biological Diversity (CDB) in 2000—is a strategy for holistic, sustainable, and equitable natural resource management, to be implemented via the 12 Malawi Principles. These principles describe the need to manage nature in terms of dynamic ecosystems, while fully engaging with local peoples. It is an ambitious concept. Today, the term is common throughout the research and policy literature on environmental management. However, multiple meanings have been attached to the term, resulting in confusion. We reviewed references to the ecosystem approach from 1957 to 2012 and identified 3 primary uses: as an alternative to ecosystem management or ecosystem-based management; in reference to an integrated and equitable approach to resource management as per the CBD; and as a term signifying a focus on understanding and valuing ecosystem services. Although uses of this term and its variants may overlap in meaning, typically, they do not entirely reflect the ethos of the ecosystem approach as defined by the CBD. For example, there is presently an increasing emphasis on ecosystem services, but focusing on these alone does not promote decentralization of management or use of all forms of knowledge, both of which are integral to the CBD’s concept. We highlight that the Malawi Principles are at risk of being forgotten. To better understand these principles, more effort to implement them is required. Such efforts should be evaluated, ideally with comparative approaches, before allowing the CBD’s concept of holistic and socially engaged management to be abandoned or superseded. It is possible that attempts to implement all 12 principles together will face many challenges, but they may also offer a unique way to promote holistic and equitable governance of natural resources. Therefore, we believe that the CBD’s concept of the ecosystem approach demands more attention.La Necesidad de Desenredar Conceptos Clave del Argot Ambiente-EstrategiaResumenLa estrategia ambiental – como es promocionada por la Convención Biológica sobre Diversidad en 2000 – es una estrategia para un manejo holístico, sustentable y equitativo de recursos naturales, que habrá de implementarse por vía de los 12 Principios de Malawi. Estos principios describen la necesidad de manejar la naturaleza en términos de ecosistemas dinámicos, mientras se compromete totalmente con las personas locales. Es un concepto ambicioso. Hoy en día, el término es común en la investigación y la literatura de políticas sobre el manejo ambiente. Sin embargo, se han relacionado múltiples significados con el término, lo que resulta en confusión. Revisamos referencias a la estrategia ambiental de 1957 a 2012 e identificamos tres usos principales: como una alternativa para manejo ambiental o basado en ecosistemas; en referencia a una estrategia integrada y equitativa para el manejo de recursos según la CBD; y como un término que indica un enfoque en el entendimiento y la valuación de los servicios ambientales. Aunque los usos de este término y sus variantes pueden traslaparse en su significado, típicamente no reflejan en su totalidad los valores de la estrategia ambiental como fue definida por la CBD. Por ejemplo, actualmente hay un énfasis creciente en los servicios ambientales, pero enfocarse solamente en estos no promueve la descentralización del manejo o el uso de todas las formas de conocimiento, siendo ambas integrales para el concepto de la CBD. Resaltamos que los Principios de Malawi están en riesgo de ser olvidados. Para entender mejor estos principios, se requiere de más esfuerzo para implementarlos. Dichos esfuerzos deben ser evaluados, idóneamente con estrategias comparativas, antes de permitir que el concepto de la CBD de manejo holístico y comprometido socialmente sea abandonado o reemplazado. Es posible que los intentos por implementar los 12 principios juntos enfrentarán muchos obstáculos, pero también pueden ofrecer una forma única de promover el gobierno holístico y equitativo de los recursos naturales. Así, creemos que el concepto de estrategia ambiental de la CBD exige mayor atención.

This chapter analyzes the interaction between international investment law and human rights instruments from a socio-cultural perspective. It is argued that legal interactions between various branches of international law (either integration or fragmentation) may be analyzed as social interactions between the relevant communities. These legal interactions are affected by the particular features of relevant social settings, as well as the mutual relationships between the relevant social groups. More specifically, it is argued that the socio-cultural distance between the particular international legal settings affects the inclination of relevant decision-makers to incorporate or reject parallel legal rules developed in other branches of international law. Consequently, greater socio-cultural ‘distance’ between the involved social settings and groups is likely to decrease the prospects for mutual incorporation of legal rules developed in the other legal sphere. As to the relationship between international investment and human rights laws, the likelihood of investment tribunals to accord a significant role to human rights treaties is influenced by the cultural distance between these two branches of international law. An analysis of investment tribunals' jurisprudence indicates that investment tribunals do not hesitate to apply rules derived from certain non-investment branches of international law (state responsibility, treaty law and general principles of law regarding corruption). Despite that, they are generally reluctant to accord significant weight to human rights treaties in international investment law. An analysis of the relationships between the social settings involved in international human rights and investment laws reveals a considerable socio-cultural distance between these branches of international law. In light of this and the deep-rooted tensions between the relevant communities, it is not surprising that investment tribunals are generally reluctant to accord significant weight to human rights treaties in international investment law. Thus, the considerable socio-cultural distance between these socio-cultural settings parallels the normative distance between these branches of international law. The existing social and normative gaps between investment and human rights laws may change in the future. Past experience shows that the relationship between various branches of international law is often dynamic. Future socio-cultural changes within each community – or changes in the social interactions between the relevant communities – may narrow the normative distance between international human rights and investment laws.

The article is dedicated to such a customary law-based criterion of the compliance of states’ behavior within their international obligations as it is the fair and equitable treatment. This investment treatment, from the one side, is an interweaving of the legal principles of justice and equality, and from another, is formed by interpretations of decisions of international investment arbitrations. In the article also listed and briefly described some principles of law including general and specific for the branches of investment law and international investment law as well as some cross-branch legal principles. The listing and descripting of mentioned legal principles is done based on well-known theoretical-pedagogical sources and acts of international organization. These legal principles create a noticeable influence on interpretation of the fair and equitable treatment by international investment arbitrations. On the basis of authoritative works on the international investment law a modern list of some elements of the fair and equitable treatment is also provided, some of these elements are either based on key legal principles for the branch of international investment law, or are their direct embodiment. There are also quotations from decisions of international arbitrations regarding foreign investments, which are provided as examples in the material. These examples make it possible to express the legal nature of the fair and equal treatment from the point of view of influence of certain principles of law on it or transfer the general conceptual meaning of this investment treatment as the protecting international investments remedy. Key words: investment treatment, fair and equitable treatment, general principles of law, legal principles of international investment law.

Even if the fair and equitable treatment has been characterised as the grundnorm of international investment law and even if it is widely invoked in the arbitration practice, its definite normative content has always been subject to many debates. It is undisputed that the fair and equitable principle has gained considerable importance in international investment law. Indeed, the violation of the fair and equitable treatment is invoked in most cases submitted to arbitral tribunals. Most bilateral and multilateral agreements on investment protection contain a specific provision whereby the host State binds itself to confer a fair and equitable treatment to foreign investors and their investments. The aim is to guarantee foreign investors that their investment will be treated in a just manner.

The Digital Observatory for Protected Areas (DOPA) has been developed to support the European Union’s efforts in strengthening our capacity to mobilize and use biodiversity data, information and forecasts so that they are readily accessible to policymakers, managers, experts and other users. Conceived as a set of web based services, DOPA provides a broad set of free and open source tools to assess, monitor and even forecast the state of and pressure on protected areas at local, regional and global scale. \n\nDOPA Explorer 1.0 is a web based interface available in four languages (EN, FR, ES, PT) providing simple means to explore the nearly 16,000 protected areas that are at least as large as 100 km2. Distinguishing between terrestrial, marine and mixed protected areas, DOPA Explorer 1.0 can help end users to identify those with most unique ecosystems and species, and assess the pressures they are exposed to because of human development. Recognized by the UN Convention on Biological Diversity (CBD) as a reference information system, DOPA Explorer is based on the best global data sets available and provides means to rank protected areas at the country and ecoregion levels. Inversely, DOPA Explorer indirectly highlights the protected areas for which information is incomplete. We finally invite the end-users of DOPA to engage with us through the proposed communication platforms to help improve our work to support the safeguarding of biodiversity.

Since the inception of the international investment law system, investment promotion and protection have been the raison d’être of investment treaties and states have confined their policy space in order to attract foreign investment and protect their investors abroad. Languishing in relative obscurity until recently, the right to regulate has gradually come to the spotlight as a key component of negotiations on new generation investment agreements around the globe. States and regional organisations, including, notably, the European Union and the United States, have started to examine ways in which to safeguard their regulatory power and guide – and delimit – the interpretive power of arbitral tribunals, by reserving their right to pursue specific public policy objectives. The monograph explores the status quo of the right to regulate, in order to offer an appraisal and a reference tool for treatymakers, thus contributing to a better understanding of the concept and the broader discourse on how to enhance the investment law system’s legitimacy.

The scientific consensus is that biodiversity is under increasing threat from habitat loss, climate change and pollution. The challenge to protect areas of high biodiversity value is gaining profile and the issue is not going to go away. Increasingly, society is expecting the oil/gas industry to make a broader contribution to solving the issue and increasingly industry wants to make that contribution. Hydrocarbon resources required to meet future demand for affordable energy are often located in protected or sensitive areas, which can give rise to tensions around competing land use. At the heart of the issue is the call to establish a universal system of protected areas. Protected areas was a key theme at the World Parks Congress in September 2003 and will also feature in the 7th Conference of the Parties to the UN Convention on Biological Diversity (CBD) in February 2004. Government signatories to the CBD are required to establish areas to protect biodiversity as part of their obligations under international law. There are a number of global systems for designating protected areas. World Heritage Sites are designed to protect areas of outstanding universal value and are also part of government's international obligations. Oil and gas activities are not considered compatible with the objectives of such sites. The UN List of National Parks and Protected Areas is classified into six categories by the World Conservation Union (IUCN). The Category System was not designed to define where industry should and should not operate, but is increasingly being used to determine land use options, although this system lacks the clear rules and procedures that characterise the World Heritage Convention. Then there are other protected areas systems such as Ramsar (for wetlands) or man and biosphere reserves. Governments may also put in place regional or national regulatory frameworks such as the European Union Habitats and Birds Directives (Natura 200 sites). Less formal are areas or regions that have been prioritised by various conservation organisations - these differ according to the criteria used by the organisation. There is a lack of trust between the conservation community and business. Some NGOs are willing to engage, but are coming under pressure to deliver benefits to conservation. Others are more adversarial. Financial institutions are also enquiring about company policy with respect to operating in protected areas. All these factors will affect us. We therefore need to position ourselves to manage this issue in the long term. The paper will outline the case for action, the recent developments within and key challenges faced by the Shell Group - particularly Shell EP, and the key features of its approach.

Contemporary investment law is marked by deep fragmentation: a network of thousands of treaties that are not always primarily focused on governing international investment relations, overlapping treatment and protection standards, as well as only partially crystallised customary rules shaped by arbitral practice. Currently this fragmentation is increasingly exacerbated by growing global geopolitical competition and international conflicts, including the ongoing war in Ukraine, thereby intensifying the tension between state security imperatives and the evolutionarily established system of foreign investor protection. The article introduces the concept of the investment standards construct – a holistic methodological model for the systemic analysis of International Investment Agreements (IIAs) and for the design of their modernised content. The proposed legal engineering approach moves beyond conventional element-by-element examination of investment treatment and protection standards (such as fair and equitable treatment, national treatment, prohibition of expropriation, etc.) and instead considers them in their dynamic interplay with procedural and other guarantees as well as legal limitations, including right to regulate and security exceptions. The new model’s applicability is demonstrated through doctrinal analysis and arbitral practice, including the current Ukrainian case cluster and other significant disputes. The study shows how the construct functions as an operational tool for both assessing disputes in contexts of economic development and conflict, as well as for designing more resilient and balanced IIAs capable of aligning investor protection with contemporary regulatory needs.