Part III - Opportunities in the EU's unilateral and bilateral external action tools

• Author: Elisa Morgera
• Pages: 36-51

Policy Department, Directorate-General for Extern al Policies

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• call f or m ore coor dinated and a mbitious a pproaches to bio diversity as a huma n right in its periodic

resolution on the EU at the UN.

• In its fo rth coming re commendations on climate change and human rights, the E P should:

o support the international recognition of a human right to a healthy environment,

compr ising a rig ht to healt hy biodiv ersity and e cosyst ems, thr ough the adoption of a

Resolut ion of the General Assem bly, noting the releva nce of biodiversity also from the

perspective of climate change and human rights;

o require the r espect of relevant CBD guidance on an ecosystem-base d a ppr oach to cli mate

chang e mitigation and adaptation, with a view to contributing also to a human r ights-

based approach in the context of agriculture, forestry and fisheries;

o underscore that CBD guidance on an ecosystem-based approach to climate change

mitigation and adaptation also clarifies the due diligence standard s fo r business

responsibility to respect human rights; and

o empha sise t he im plicatio ns of climate chang e initia tives that m ay lea d to b iodiver sity loss

for everyone’s right to health, the human rights of children and the human rights of

women .

6 Part III - Opportunities in the EU’s unilateral and bilateral

external action tools

This section turns now to identifying opportunities for improvement and innovation across the EU’s

unilateral and bilateral external action tools to address the hu man righ ts dime nsions of b iodive rsit y. It will

focus on m aximising the potential of EU bilateral agreements and other external relations tools for creating

genuine partnerships that can enhance every-d ay account ability vis-à-vis biodivers ity as a human right.

Accordingly, both the EU and partner cou ntries can:

• better understand national and local dynamics affecting, both positively and negatively, biodiversity as

a human right notably with regard to economic, social and cultural rights, women’s righ ts, ch ildren’s

rights, non-discrimination, bus iness and human righ ts, hu man rights a nd pea ce-building, as well as the

us e o f im pa ct a ssess ment s (i n li ne wi th t he E U’s A cti on Pl an on Human Rig hts a nd D emocr acy 201 5-2019);

• support contextual and bottom-up approaches fo r th e protection a nd realisatio n of biodiv ersity-related

human rights (in line with a focus on ‘local ownership’), with a view also t o sharing best practices and

lessons learnt in relevant multilateral for a (see Part II above);

• enhance participation a nd capacity to collaborate o n h uman rights with biodiversity exp erts and other

constituencies (also in the context of climate change, ocean and chemicals), as they still remain relatively

isolated fro m each other; and

• ensure t hat the EU and its Member States co mply with their international obligation s on biodiversity and

human rights in good faith and in a mutually supportive manner, whilst at the same time honouring their

EU law obligations on policy coherence in external action. It ha s be en not ed that th e Europ ean Parliament

can exer t sig nificant influe nce on EU develop ment cooperation with a v iew to ensuring po licy coherence

(Card well and Jancic, 2019) .

This approach can ultimately serve to prove the genuine character of EU support for environmental

mult ilater alism thro ugh bilater al extern al rela tions to ols, which should thus b e openly d iscussed with third

countries and stakeholders (Morgera, 2012). It could als o obviate any criticism suggesting that the EU may

expect part ner countries to have higher standar ds on biodiversity and human r ights than the EU itself has

Biodiversity as a Human Right and its implications for the EU’s External Action

37

achiev ed inter nally (Mor gera, 201 2b; Gaglia Bareli et al, forth coming), by focus ing on op portunit ies for

mutual learning in implementing international obligations that are challenging both for developed and

developing count ries (policy coherence, ecosystem and human rights-based approach). Such an approach

could also offer an effective response to criticism o f the EU’s underlying agenda aimed at protecting

competitive inter ests and preventing WTO challenges by exporting EU regulation (Kelemen, 2009) or

ensu ring acce ss to r aw ma terials in thir d count ries29. W hile to some extent t he competing agendas of

environmental s ustainability and economic development ar e an inevitable characteristic of the EU and its

external relations (and indeed of any other bilateral partner), a truly cooperative approach can make a

difference through a commitment to t esting and fine-tun ing the EU’s positions in p artnership with third

countries through mutu al learning and sharing new insights at the multilateral level.

The following sections will firstly provide an ass essment of existing approaches in the EU’s external

relations and then present r ecommendations for improvement and innovation.

6.1 Bilateral trade agreements

Compared with EU support for the int ernational climate change r egime, which epitomises the most

advanced inter action between the Union’s multilateral stances (Kulovesi, 2012), the integr ation of

biodiversity in the EU’s externa l relations tools has yet to reach the same level of sophist ication, remaining

quit e ad hoc until the 2020 Biodiversity Strategy, adopted in 2011. Th is is a rgua bly du e to t he s ignificantly

lesser dyn amis m in EU biod ivers ity la w compa red t o EU clima te law ( Morge ra, 20 12b).

Accor ding to th e EU’s 2020 Biod iversit y Stra tegy, the Union has commit ted to: including biodiv ersity

systematically as part of trade negotiations and dialogues with third countries; iden tifyin g and e valuating

potential impacts on biodiversity resulting from the liberalisation of trade and investment through ex-ante

Sus ta ina bilit y Im pact Ass essme nts (S IAs ) and ex-post e valuation s; as well as seekin g inclusio n of substa ntial

provisions concerning tra de and biodiversity goals in all new bilateral trade a greements. As a res ult, most

recent EU bilatera l agreements refer in their Tr ade and Sustainable Development Chapters to the CBD and

CITES 30. In a ddition, they include more detailed provision s rela ted t o biod iversit y cooper ation31, as we ll as

climate change32, forestry33 a nd fis heries 34 along with environmental cooperation,35 which a ll have

biodiv ersity relevan ce. Provis ions on corpor ate accou ntability , respon sible supp ly chains and bu siness

29 (Hall, 2009); and response by (Thompson, 2009).

30 EU-Centr al America Association, Articles 285(2) and 287(2); EU-Colombia and Pe ru (COPE) FTA, Articles 267(2)(b) and 270(2); EU-

Korea Agreement, Article 23 and EU-Korea FTA, Article 13.11; EU-Japan, art . 16.6 .

31 E.g., Cotonou Agreement, Article 46(2); EU-Arme nia PCA , Article 55(2); EU-Colombia and Peru FTA, Article 272; EU-MERCOSUR art

7; EU-Japan, art 16.4.4; EU-Mexico, art. 6.c of the Trade and Sustainable Development Chapter; EU-Viet Nam, art 13.7.

32 In particular, Cotonou Agreement (Partnership Agreement between the Member s of the Afri can, Caribbean and Paci fic Group of

States of the one part and the European Communi ty and its Member States of the other (2000),O J L317/3)- Second Revision of t he

Cotonou Partne rship Agre ement – Agreed Consolidated Text (11 March 2010):

www.ec.europa.eu/development/icenter/repository/second_revision_cotonou_agreement_20100311.pdf, Articles 1, 8, 11 and

32bi s; COPE FTA, Article 275; South Korea FA, Article 24; Agreement establishi ng an Association between the EU and its Member

States, on the one hand, and Central Ameri ca on the other, (2012), OJ L346/3, Article 63; EU-Mexic o, ar t. 5 o f the Tr ade and

Sustainable Developme nt Chapter; EU-Viet Nam, art13.6; EU-Singapore, Art. 12.6.3.

33 EU-Japan, art. 16 .7; EU-MERCOSUR art 8 of the Trade and Sustainable Development Chapter; EU-Mexi co, art . 7 of the Trade and

Sustainable Development Chapter; Viet Nam, art 13.8; Singapore, Art. 12.7.

34 EU-Japan, art. 16 .7; EU-MERCOSUR art 9 of the Trade and Sustainable Development Chapter; EU-Mexi co, art . 8 of the Trade and

Sustainable Development Chapter; EU-Viet Nam, art 13.9; EU-Singapore, Art. 12.8.

35 EU-Japan, art. 16.2; EU-MERCOSUR art 13 of the Trade and Sustainable Development Chapter; EU-Mexico, art. 13 of the Trade

and Sustainable Development Chapter; EU-Viet Nam, art 13.14; EU-Singapore, Art. 12.10.