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Russian and Canadian Legal Frameworks on the Protection of
the Arctic Biodiversity from Invasive Alien Species
University of Eastern Finland
Law School
Master’s Thesis
28 April 2018
Writer: Maksim Lavrik, 285280
Supervisor: Yulia Yamineva
II
Abstract
UNIVERSITY OF EASTERN FINLAND
Faculty
Social Sciences and Business Studies
Unit
Law School
Author
Maksim Lavrik
Name of the Thesis
Russian and Canadian Legal Frameworks on the Protection of the Arctic Biodiversity from
Invasive Alien Species
Major
Environmental and Climate
Change Law
Description
Master’s thesis
Date
28 April
2018
Pages
85
Abstract
The effects of climate change are becoming critical as rising temperatures threaten the resilience of vulnerable communities and the
environment. No more can this be seen than in the case of the Arctic. Although climate change can open new opportunities for economic development, it also risks making ecosystems and communities more vulnerable. As temperatures continue to rise, ecosystems are
beginning to change and there is a prediction of rise in the amount of invasive alien species (IAS) entering the Arctic. Such invasive
migrations pose biodiversity threats and interferences with traditional community activities. Thus, this master’s thesis compares the
legislation of both Russia and Canada in order to assess the adequacy of biodiversity protection in the Arctic from IAS.
Article 8 (h) of the Convention on Biological Diversity (CBD), to which both Canada and Russia are parties, acts as an umbrella norm
for international biodiversity commitments against IAS, while other international instruments, both hard law and soft law, general and
Arctic-specific contain provisions relevant to the issue. Biodiversity protection from IAS enhances the resilience of ecosystems, which
is a non-climate mean for the climate change adaptation of ecosystems.
This master’s thesis seeks to highlight that Russia and Canada do not yet have comprehensive legal frameworks for biodiversity
protection from IAS either in their general or in their Arctic-specific legislation. Nevertheless, the IAS problem is, to some extent,
framed within the legislation of each country. These countries use a diverse range of legal and policy documents towards the issue,
combining different instruments including sectoral regulation (aquatic, quarantine, border control, and other sectors), establishing of
lists of IAS, and others. Both countries have the capacity to use sources of general regulation to protect the Arctic’s biodiversity from threats of IAS. Some sub-national entities of comparing countries established their own unique regulation on IAS which could be used
as a model for regulation in Arctic regions.
The constitutional arrangements are crucial, both for implementation of international commitments of the countries, and establishing
their legal frameworks. However, establishing federal environmental policy in Canada has proven problematic given each province has
such strong legislative powers. For example, provinces like Ontario have comprehensive IAS law with concrete mechanisms and strict
sanctions, while other Canadian provinces such as Quebec provide an example of interjurisdictional regulation towards the IAS problem
in cooperation with the states in the United States like Vermont and New York. In Russia, the federal level is authorized to establish federal environmental policy, while the environmental law is in a joint jurisdiction of the federation and the regions (subjects). Current
federal law and policy documents in Russia concern IAS problem. Subjects of the Russian Federation launch their own regulation, on
the one hand, implementing federal policy and, one the other hand, reflecting regional specificity. Thus, the Sakhalin Region concerns
the problem of ballast water. Another Russian subject – the Ulyanovsk Region uses incentives instead of command and control methods
towards the problem. According to the regulation in the region, an absence of IAS on the territory of a settlement is a requirement for
participation in the regional competition for the best settlement.
This thesis seeks to offer several recommendations for the future development of legal and policy frameworks on IAS.
Key words
Biodiversity law, climate change law, adaptation to climate change, invasive alien species, Arctic, Russia, Canada
III
TABLE OF CONTENTS
Abstract ..................................................................................................................................II
TABLE OF CONTENTS .................................................................................................... III
REFERENCES .................................................................................................................... VI
ABBREVIATIONS .......................................................................................................... XIV
FIGURES AND TABLES ................................................................................................ XVI
CHAPTER 1. INTRODUCTION .......................................................................................... 1
1.1 Problem statement .................................................................................................. 1
1.1.1 Problem overview ...................................................................................... 1
1.1.2 Importance of the problem......................................................................... 2
1.1.3 The previous studies by others and the possible contribution of the
master’s thesis to the existing knowledge .......................................................... 2
1.2 Research objective and research questions ............................................................ 3
1.2.1 Planned achievement ................................................................................. 3
1.2.2 Main research question .............................................................................. 3
1.2.3 Sub-research questions .............................................................................. 3
1.3 Methods .................................................................................................................. 3
CHAPTER 2. THE SCIENCE AND REGULATION OF BIODIVERSITY PROTECTION
FROM INVASIVE ALIEN SPECIES................................................................................... 5
2.1 The science on biodiversity protection from invasive alien species ...................... 5
2.2 Regulation of biodiversity protection from invasive alien species ........................ 8
2.2.1 International regulation of biodiversity protection from invasive alien
species ................................................................................................................. 8
2.2.2 Regional and national approaches to regulation of biodiversity protection
from invasive alien species ............................................................................... 13
2.2.3 Climate change adaptation and its nexus with the regulation of
biodiversity protection from invasive alien species.......................................... 15
IV
2.2.4 Regulation of invasive alien species in the Arctic ................................... 19
2.3 Conclusion............................................................................................................ 22
CHAPTER 3. A LEGAL FRAMEWORK ON INVASIVE ALIEN SPECIES IN CANADA
............................................................................................................................................. 23
3.1 General outline ..................................................................................................... 23
3.2 Canadian legislation on invasive alien species .................................................... 26
3.2.1 Federal legislation.................................................................................... 26
3.2.2 Legislation of provinces .......................................................................... 29
3.3 Arctic-specific Canadian legislation relevant to the protection of Arctic
ecosystems from invasive alien species ..................................................................... 32
3.4 Conclusion............................................................................................................ 35
CHAPTER 4. A LEGAL FRAMEWORK ON INVASIVE ALIEN SPECIES IN RUSSIA
............................................................................................................................................. 37
4.1 General outline ..................................................................................................... 37
4.2 Russian legislation on invasive alien species ....................................................... 40
4.2.1 Federal legislation.................................................................................... 40
4.2.2 Legislation of the subjects of the Russian Federation ............................. 46
4.3 Arctic-specific Russian legislation relevant to the protection of Arctic ecosystems
from invasive alien species ........................................................................................ 50
4.4 Conclusions .......................................................................................................... 54
CHAPTER 5. COMPARISON OF RUSSIAN AND CANADIAN LEGAL
FRAMEWORKS ON INVASIVE ALIEN SPECIES ......................................................... 57
5.1 General remarks on comparative law analysis ..................................................... 57
5.2 General remarks on comparative environmental law........................................... 61
5.3 Comparison of federal (national) legal frameworks on invasive alien species in
Russia and Canada ..................................................................................................... 63
5.4 Comparison of regional (sub-national) legal frameworks on invasive alien species
in Russia and Canada ................................................................................................. 66
V
5.5 Comparison of the Arctic-specific legislation relevant to the protection of
ecosystems from invasive alien species in Russia and Canada .................................. 68
5.6 Conclusion............................................................................................................ 72
CHAPTER 6. ASSESSMENT OF ADEQUACY OF EXISTING LEGAL FRAMEWORKS,
CONCLUSIONS AND RECOMMENDATIONS BASED ON THE COMPARISON ..... 74
6.1 Assessment of adequacy of existing legal frameworks and conclusions ............. 74
6.2 Recommendations based on the comparison ....................................................... 82
VI
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XI
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XIV
ABBREVIATIONS
AEPS Arctic Environmental Protection Strategy
AISR Aquatic Invasive Species Regulations
AMAP Arctic Monitoring and Assessment
Program
AWPPA Arctic Waters Pollution Prevention Act
BEAC Barents Euro-Arctic Council
BNA British North America
BWM International Convention for the Control
and Management of Ships’ Ballas Water
and Sediments
CAFF Conservation of Arctic Flora and Fauna
CAO Code of the Russian Federation on
Administrative Offences
CBD Convention on Biological Diversity
COP Conference of the Parties to the Convention
on Biological Diversity
EEZ Exclusive economic zone
EPPR Emergency Prevention, Preparedness, and
Response
EU European Union
GATT General Agreement on Tariffs and Trade
GHG Greenhouse gases
IAS Invasive alien species
ICJ International Court of Justice
IUCN International Union for Conservation of
Nature
NEAFC Northern Atlantic Fisheries Cooperation
NOK Norwegian Krone
PAME Protection of the Arctic Marine
Environment
XV
RRAP Lake Champlain Basin Rapid Response
Action Plan for Aquatic Invasive Species.
UNCHE United Nations Conference on the Human
Environment
UNCLOS United Nations Convention on the Law of
the Sea
UNFCCC United Nations Framework Convention on
Climate Change
USA, US United States of America
USSR Union of Soviet Socialist Republics
WTO World Trade Organization
XVI
FIGURES AND TABLES
Figure 1. Canadian Provinces and Territories
Figure 2. Russian Arctic Zone
Table 1. Federal (national) legal frameworks on IAS in Russia and Canada
Table 2. Regional (sub-national) legal frameworks on IAS in Russia and Canada
Table 3. The Arctic-specific legislation relevant to the protection of ecosystems from IAS in
Russia and Canada
1
CHAPTER 1. INTRODUCTION
1.1 Problem statement
1.1.1 Problem overview
The Arctic is the region, where the impact of climate change on nature and societies is
critical. This does not only open new opportunities for economic development (natural
resources extraction, routes for transportation, new lands for agriculture and other
livelihoods), but also makes ecosystems and living conditions more vulnerable (extinct ion
of species living in ices, risks of flooding and other natural disasters, changes for traditiona l
livelihoods of indigenous people, destruction of buildings, which were constructed under
other climatic circumstances)1.
According to Key Finding 6 of the Report for Policymakers by Conservation of Arctic Flora
and Fauna working group of the Arctic Council, nowadays the amount of invasive alien
species (IAS) in the Arctic is insignificant but considering climate change and increasing
human activity risks of biodiversity threat by IAS are increasing2.
The threat for Arctic biodiversity from IAS and readiness of existing legislation in two Arctic
states – Russia and Canada – for the appropriate response to the issue is the main problem
which is in focus of the master’s thesis.
The introductory chapter of the master’s thesis, first, outlines the problem statement, then
describes research objective, research questions, and methods. Chapter 2 shows the science
and regulation of biodiversity protection from IAS including international, regional and
national regulation, its nexus with climate change adaptation and specific of regulation of
the issues in the Arctic. Chapters 3-5 of the master’s thesis describe legal frameworks on
IAS in Russia and Canada and their comparison, wrapping up by chapter 6 which focuses
on an assessment of the adequacy of existing Russian and Canadian legal frameworks,
conclusions and recommendations based on the comparison.
1 Korzun 2014, p. 38-43 (Корзун 2014, с. 38-43). 2 Conservation of Arctic Flora and Fauna: Key Findings of the Report for Policy Makers. 02.11.2017.
2
1.1.2 Importance of the problem
IAS recognized as the second most important threat to biodiversity after habitat loss3. Even
though in the Arctic this problem is not as significant as in other places of the planet, IAS
are already recognized in some Arctic territories. Examples include non-native plant species
in Canadian Arctic, nine non-native plant species in Svalbard, Nootka lupin in Iceland
(introduced to control erosion, but now is recognized as a threat for heathland vegetation),
Pacific red king crab in Norway and Kola Peninsula4.
Climate change and increasing human activity can lead to migration of existing non-native
terrestrial species from sub-Arctic to the Arctic, coming- in of alien species by unmanaged
ballast waters, ship hulls and drilling rigs and import of diseases and pathogens5.
While prevention ecosystems from alien species is a better option than combating with
already existing invasive plants and animals6, the assessment of existing regulation for such
prevention and the necessity to improve it seems important. Canada and Russia are
significant countries in the Arctic region, combining crucial share of territories. The
development of the North Sea Route from China through or closer to Russian territory is
also one of the factors, which makes researching the topic important.
1.1.3 The previous studies by others and the possible contribution of the master’s thesis to
the existing knowledge
The issues of interconnection between climate change and biodiversity and correlating legal
regimes are in focus of environmental law and policy literature.7 Different aspects of alien
species problems including Arctic region are also researched8. The contribution of this paper
to the existing knowledge will be in the assessment of existing Canadian and Russian
regulation concerning the describing problem in their comparison, which has not been
conducted before.
3 Ibid. 4 Ibid. 5 Ibid. 6 Ibid. 7 Trouwborst 2013, p. 298-324. 8 Hansen 2016, p. 38-43.
3
1.2 Research objective and research questions
1.2.1 Planned achievement
The planned outcome of the master’s thesis is the assessment of the existing legisla t ive
framework in Russia and Canada concerning the protection of Arctic biodiversity from IAS.
1.2.2 Main research question
In order to achieve planned outcome, the master’s thesis poses the following main research
question:
• To what extent the current legal frameworks in Canada and Russia are adequate for
protecting the Arctic from IAS and how do they compare in terms of scope and
approaches?
1.2.3 Sub-research questions
The master’s thesis poses following sub-research questions in order to answer the main
research question:
1. What are the general and Arctic-specific legal frameworks on biodiversity protection
from IAS in Russia and Canada?
2. How do Russian and Canadian legal frameworks on IAS compare in terms of scope
and approaches?
3. To what extent the current legal frameworks in Canada and Russia are adequate for
protecting the Arctic from IAS and how can they be strengthened?
1.3 Methods
The problem of invasive species in the Arctic region in the era of climate change is complex
in nature.
Russia and Canada were chosen for comparison because, on the one hand, they have
similarities (in terms of territory, geographical and climatic conditions, and federal
governing systems) which may comparison as such possible. On the other hand, the countries
have differences (in Arctic policy, geography, traditions of governing and legal
development) which combining with similarities can provide fruitful outcomes by
comparison. Possibility to use relevant data in Russian and English is also one of the reasons
why I choose these countries for comparison.
4
The master’s thesis uses different types of methods to answer sub-questions. First, the thesis
applies doctrinal approach towards Russian and Canadian legal frameworks. Then, master’s
thesis uses comparative law methods to compare Russian and Canadian legal frameworks in
terms of their scope and approaches. Finally, assessment of the adequacy of existing legal
frameworks and recommendations for their development will be done (policy approach)
appreciating the potential and limitations of comparison.
The doctrinal approach focuses on the question what the norms are and how they are
implied9. Comparative analysis requires searching for similarities and differences between
comparing legal elements for better understanding their legal features. Subsections 5.1 and
5.2 describes the methodology of comparative law approach in more details. Policy
approach, in particular, focuses on modification of existing norms towards better
regulation10.
9 Bodansky 2010, p. 6. 10 Ibid. p. 7.
5
CHAPTER 2. THE SCIENCE AND REGULATION OF BIODIVERSITY
PROTECTION FROM INVASIVE ALIEN SPECIES
2.1 The science on biodiversity protection from invasive alien species
As K.C. Lewis and R.D. Porter claim IAS can be described as species which are not native
for the location and which cause or can with a high degree of certainty cause harm to
biodiversity, human health, or economy, and only IAS which cause harm require
regulation11.
The following traits characterise the invasiveness of species: high productive capacity,
competitive advantages over native species, their history (one can suggest that if species
were not native originally, they have better chances to be naturalised at new territories), their
ability to fashion and flourish at the new (even poor) environment12. Despite natural
processes and traditional types of human activity (as traveling), new-coming challenges and
developments as climate change and bioengineering can boost the transition of species into
invasive types13. Thus, changing climate gives a competitive advantage to species, which
can adapt to the new environment and genetic modifications create types of species for
example plants, which are resistant to pests and that is why, receive more capacities to
become invasive ones14.
Historically ones of the first examples of IAS are an introduction of rabbits from Britain to
Australia and aphids by grapevines importation from North America to Europe in XIX
century. Thus, 24 rabbits, which had been imported for hunting purposes to Australia in the
middle of XIX century, already after a decade achieved more than 14 000 species in their
population, then became recognised as pests and now recovery from rabbits’ harm costs 1
billion of Australian Dollars every year15. The other example is occasionally imported
aphids, which destroyed more than 1 million hectares of grapevines in France not counting
other European countries. Those cases brought into life an idea of monitoring of species and
restrictions in regulation16.
11 Lewis – Porter 2014, p. 172. 12 Ibid, p. 173. 13 Ibid, p. 174. 14 Ibid, p. 174. 15 Riley 2005, p. 323. 16 Ibid, p. 323.
6
Classifications of IAS follows different criteria. Thus, one of the criteria is an impact of
species on the environment. In this term, IAS could be: 1) IAS modifying habitat, 2) IAS as
pests and diseases, 3) IAS hybridizing with native species (which, nevertheless, can lead to
the creation of new species either aggressive towards natives or not).
An intention of mediums to introduce the species into the new environment is another
criterion for the classification. On this criterion, two types of IAS can be distinguished: IAS
which are introduced accidentally (as in situations with ballast water) or deliberative ly
(introducing of species for hunting, homesickness or other purposes). Such characterist ics
as varieties of species with invasiveness potential, varieties of mediums, means of
transportation and introduction make regulation of IAS difficult17.
The specifics of location are also what matters for regulation. Thus, highly diverse
ecosystems with the competitiveness of native species for resources are more stable against
IAS than fragile ecosystems18 like the Arctic region, which is in focus of the thesis.
In addition, establishing of new policies and technologies could lead to the conflicts with the
realization of the idea of the necessity of biodiversity protection against IAS. Thus, climate
change mitigation policies aimed at a shift towards renewables such as bioenergy could
create new threats in light of IAS problem. For policy of increasing bioenergy, life cycle
circles of plants are sufficient in terms of GHGs emissions, that is why selection of plants is
conducting on such a criteria as a rapid growth, high seed production, and ability to flour ish
in different environmental conditions, which also lead to cultivation of plants with high level
of invasiveness potential. The escape of such species into the environment could be the
creation of IAS problem for local ecosystem19.
Further, the section provides positions of science on IAS issues in the Arctic concerning
climate change.
17 Ibid, p. 326. 18 Lewis – Porter 2014, p. 176. 19 Ibid, p. 191.
7
Global warming is stronger in the Arctic region than elsewhere and all climate models
predict that the trend will continue20. Just for the period from 1980 to 2012, the Arctic region
lost 75 % of its summer sea ice21. Climate change in the Arctic, on the one hand, opens new
opportunities for tourism, navigation, and natural resources extraction22. On the other hand,
it threatens the Arctic ecosystems and livelihood of the local population 10 % of which is
indigenous communities relying on hunting, fishing and herding23.
The impact of climate change on the Arctic ecosystems is of dual nature. While some species
can (temporary) benefit from changes climate (as some migratory birds)24, mainly the impact
could be adverse. Thus, according to some studies, longer ice-free summers would cause
more stress for polar bears, which will negatively affect their reproductive capacity25. The
Arctic cod, which is in a food chain of polar bears, will change their habitat26. These and
other factors will lead to 2/3 decline of the population of the polar bear by 205027. Climate
change driven change of habitat of killer whales will be a new threat for bowhead whales,
belugas, and narwhals28.
As the beginning of the chapter mentioned, as for now the problem of IAS for the Arctic is
not significant. Notwithstanding, species which are not native to the Arctic are already
existed in the region. The subsection outlines further the problems concerning Arctic non-
native Barents Sea snow crab.
In the area of Svalbard (Spitsbergen) and on the continental shelf of Russia and Norway, the
population of Barents Sea snow crab (Chionoecetes opilio) is recognized. This type of crab
is non-native for those territories, but its origin and the way of transportation is not well
established. According to some assessments, snow crab is a potentially important source of
income and could lead to yearly Norwegian profit as 7,5 billion NOK.
20 US National Research Council, The Arctic in the Anthropocene: Emerging Research Questions (National
Academies Press, 2014), available at http://www.nap.edu/catalog/18726 21 Ibid. 22 Koivurova, Arctic Resources: Exploitation of Natural Resources in the Arctic from the Perspective of
International Law in book: Morgera - Kulovesi (eds). Research Handbook on International Law and Natural
Resources. Edward Elgar, 2016, pp. 349. 23 Ibid. 24 Trouwborst Journal of International Wildlife Law & Policy. 2013, p. 1-40. 25 Byers – Baker 2013, p. 174. 26 Ibid, p. 174. 27 Ibid, p. 174. 28 Ibid, p. 177.
8
The possible profit leads to the necessity of effective management, which is challenging by
disputable rights over natural resources in Svalbard (Spitsbergen) and the fact that stocks are
shared between Russian and Norwegian spheres. The discussion on the status of snow crab
as IAS is also important. According to H.S.B. Hansen, the facts that human introduction of
the animal is not proven and the threat to the ecosystem is not recognized do not allow
defining Barents Sea snow crab as IAS and that is why Norway and Russia do not have any
obligations under the CBD and UNCLOS concerning the treatment to this crab as IAS.29
Notwithstanding, H.S.B. Hansen claims that precautionary principle as a guiding idea of
bilaterally established Join Russian-Norwegian Fisheries Commission30 should be in a
substance of attitude towards discussing spice31.
The case of Barents Sea, on the one hand, shows the difficulties in establishing origin and
way of introduction of non-native species. In case of uncertainties of the impact of the spice
on local biodiversity and prominent profit of states based on the industrial use of such spices,
situations, as described above, construct obstacles in the protection of Arctic ecosystems. On
the other hand, the example points out the importance of precautionary principle, risk
assessment and bilateral and multilateral cooperation of states and other stakeholders in
environmental issues.
The next section shows how existing regulation reflects provisions of the science on IAS.
2.2 Regulation of biodiversity protection from invasive alien species
2.2.1 International regulation of biodiversity protection from invasive alien species
The dilemma between biodiversity protection, on the one hand, and economic activity and,
for example, climate change mitigation (as in case of bioenergy), on the other hand, not
necessarily solves in favour of biodiversity. This fact combining with the complexity of IAS
problem leads to the situation that legal frameworks towards IAS are quite diverse. The
section will illustrate this.
29 Hansen Marine Policy 2016, p. 38-43. 30 Join Russian-Norwegian Fisheries Commission: Regulations. 31 Hansen Marine Policy 2016, p. 40.
9
The regulatory approaches towards IAS problem are different and exist on different levels :
international, regional (supranational), national and subnational. First, the subsection
describes international principles and regulation based on the provisions of Convention on
Biological Diversity (CBD) and other treaties and international soft law instruments, then
the subsection outlines the European Union (EU) norms towards IAS, wrapping up by
examples of the USA regulation both at federal and state levels. Despite the EU and the US
regulations are not related to legislation of the countries, which are in focus of the thesis,
they can enlighten the landscape of possible models of IAS regulation.
Established at the Earth Summit (UN Conference on Environment and Development) plan
of action Agenda 21, Rio de Janeiro, 14 June 1992, in its para. 15.3 highlights that
biodiversity loss took place particularly on the ground of “introduction of foreign plants and
animals” (which is also shown terminological differences towards IAS). In the same
paragraph principles towards biodiversity protection (and considering mentioned above
provisions – towards IAS regulation) are enshrined. Among them are an attitude towards
biological resources as a capital asset, necessity for capacity to monitor, study and assess
biodiversity, a requirement of national effective measures and international cooperation, re-
establishing of state sovereignty over their resources combining with a responsibility to
conserve biodiversity and not to cause harm to biodiversity which is outside of state’s
jurisdiction.
Another soft law document – the Earth Charter, The Hague, 29 June 2000, highlights the
problem of IAS in context of the principle of ecological integrity. According to the Princip le
5 (d) of the Charter, special concern on biodiversity and natural processes sustaining life in
protecting and restoring the integrity of ecosystems is assumes, on the one hand, control and
eradication of non-native and genetically modifies species which are harmful to the
environment, and, on the other hand, prevention of ecosystems from introduction of such
species.
The Convention on Biological Diversity (CBD), Rio de Janeiro, 05 June 1992, in force 29
December 1993 (the Russian Federation is a party to the treaty since 4 July 1995, Canada is
a party to the treaty since 29 December 1993) obliges states to prevent, control and eradicate
alien species which are harmful for ecosystems, habitats and species as far as possible and
as appropriate (Art. 8 (h) concerning in-situ conservation).
10
On the Conference of the Parties (COP) to the CBD (10th meeting) the Aichi Biodivers ity
Targets has been established. According to that document, the achieving of Strategic goal B
(reduction of direct pressure on biodiversity and promotion its sustainability) is possible in
particular by aiming target 9 (by 2020) which consist of identification of IAS and their
pathways, control and eradication of the most significant ones, and prevention of
introduction and establishment of IAS.
In order to implement provisions of Art. 8 (h) of the CBD and achieve target 9 of the Aichi
Biodiversity Targets following COP decisions on IAS is especially significant as a tool: CBD
COP 6 Decision VI/23 “Alien Species that threaten ecosystems, habitats or species” and
CBD COP 12 Decision XII/16 “Invasive alien species: management of risks associated with
introduction of alien species as pets, aquarium and terrarium, and as live bait, and live food,
and related issues”.
The role of CBD COP 6 Decision VI/23 is crucial in giving states a non-binding Guiding
Principles in implementation of Art. 8 (h) of CBD (an attachment to the Decision) and also
significant in highlighting key features of a problem, relevant international instruments, and
bodies. Thus, the Decision mentions the Office International des Epizooties, the
International Maritimes Organization, and the World Trade Organization to name but as
main international entities for cooperation towards the issue. The Decision especially
highlights the role of International Plant Protection Convention, Rome, 06 December 1951,
in force 03 April 1952 (both the Russian Federation and Canada are contracting parties).
The Decision in its Annex enshrines four groups of guiding principles for prevention,
introduction, and mitigation of impacts of alien species that threaten ecosystems, habitats
and species:
1. general principles including precautionary approach, three stages approach –
eradication/containment/control, the ecosystem approach, the role of a state,
education and monitoring in combating with IAS problem;
2. principles of prevention: border control, quarantine measures, exchange of
information, cooperation and capacity building;
11
3. principles concerning introduction divided into two groups: concerning intentiona l
introduction such as prior authorization and concerning unintentional introduction
such as identification of pathways and sectoral analysis;
4. mitigation principles based on three stages approach mentioned in general princip les,
where eradication is a priority principle and two others are supplementary measures
if the first strategy is unavailable.
Concerning the topic of the thesis it should be mentioned that CBD COP 6 Decision VI/23
especially highlights the threat of IAS in geographically and evolutionary isolated
ecosystems (to which the Arctic region mutatis mutandis could be included in my opinion)
and mentions increasing global trade, tourism, climate change and transportation as main
risks concerning the issue (which is also significant for the developing Arctic).
The complexity of IAS problem involves different international instruments and
organizations in formulating regulatory framework. While outlining CBD COP 6 Decision
VI/23 the subsection has already mentioned some of them. According to S. Riley, more than
40 treaties to some extent include IAS regulation or preventive measures in their agendas32.
One of historically the first examples is the Convention designed to ensure the conservation
of various species of wild animals of Africa, which are useful to man or inoffensive, 190033.
Some related to the issue provisions can be found:
• in the law of the sea: Art.196 of the United Nations Convention on the Law of the
Sea (UNCLOS), Montego Bay, 10 December 1982, in force 16 November 1994, the
International Convention for the Control and Management of Ships’ Ballast Water
and Sediments (BWM), 13 February 2004, in force 8 September 2017, both Russia
and Canada are parties of the Conventions;
• In the Antarctic law: Art. IX of the Agreed Measures for the Conservation of
Antarctic Fauna and Flora, Brussels, 02 June 1964, in force 01 November 1982,
ratified by the Soviet Union 20 February 1965, Canada is not a party of the treaty,
the Protocol on Environmental Protection to the Antarctic Treaty, Madrid, 04
October 1991, in force 1998, especially provisions of Annex II to the Protocol –
32 Riley 2005, p. 323. 33 British Parliamentary Papers, 1900, Cd. 101., vol. 56, pages 825-837
12
Conservation of Antarctic fauna and flora, Russia is a party of the Protocol, Canada
is not participating; despite focusing of these documents on different geographica l
region than the master’s thesis concerns, they are the examples of eradication and
control approaches towards IAS in fragile ecosystems with cold climate;
• In the trade law: Agreement Establishing the World Trade Organization (WTO),
Marrakesh, 15 April, 1994, especially such provisions of its annexes as Art. XX (b,
g) of the General Agreement on Tariffs and Trade (GATT), Geneva, 30 October
1947, in force 01 January 1948, Agreement on the Application of Sanitary and
Phytosanitary Measures concerning for example quarantine measures establishing
by states for protection of their environment, both Russia and Canada are parties of
the WTO.
Besides provisions of conventions in which Russia and Canada are parties as hard law
instruments, soft law regulation should be mentioned. In this type of regulation, guidelines
and statements of the International Union for Conservation of Nature (IUCN) are significant.
The IUCN combines both governmental and non-governmental organizations, scientific and
business communities. It provides at least following documents concerning the topic: the
IUCN Position Statement on translocation of living organisms: introductions, re-
introductions and re-stocking, Gland, 04 September 1987, the IUCN Guidelines for the
prevention of biodiversity loss caused by alien invasive species, Gland, February 2000, and
the IUCN Guidelines for Re-Introductions, Gland, May 1985. The IUCN Guidelines for the
prevention of biodiversity loss caused by alien invasive species are embedding the princip les
and recommended actions concerning the intentional and unintentional introduction of IAS,
eradication and control, highlighting state regulation and policy expressing national
specificity as a crucial factor for successful biodiversity protection.
Thus, the problem of biodiversity protection from the impact of IAS attracts complex
attention of different legal regime, soft and hard law instruments. One can recognize Art. 8
(h) of the CBD which requires states to prevent, control and eradicate IAS as an umbrella
provision. Different instruments usually mention control, containment, and eradication as
main means to combat the problem concerning both intentionally and unintentiona lly
introduced IAS.
13
2.2.2 Regional and national approaches to regulation of biodiversity protection from
invasive alien species
Regulation (EU) # 1143/2014 of the European Parliament and of the Council of 22 October
2014 on the prevention and management of the introduction and spread of invasive alien
species (Regulation 1143/2014)34 – is the main EU legal instrument towards IAS problem,
which is directly applicable to its member states. In the preamble of the document, the EU
refers to its obligations under Art. 8 (h) CBD to protect biodiversity from IAS (para. 4). The
aim of the Regulation is to prevent, minimize and mitigate the adverse impacts on
biodiversity of introduction and spread of IAS (Art. 1).
The Regulation recognizes the existence of 12 000 alien species within the Union’s border,
10-15 % of which could be invasive (para. 1 of the preamble). The document reflects basics
international attitudes towards the problem including understanding of intentional and
unintentional ways of introduction of IAS (Art. 1, para. 21 of the preamble), recognition of
priority of prevention measures (para. 15 of the preamble), combination of eradication,
containment, and control (para. 24 of the preamble).
Regulation 1143/2014 establishes links with its provisions and necessity to follow other EU
obligations (in particular under the WTO regime – para. 11 of the preamble). The document
recognizes the importance of excluding overlapping and contradiction with other EU norms
(para. 8 of the preamble) and affirms the necessity of taking into consideration such factors
as implementation costs of member states, cost of inaction, cost-effectiveness, and socio-
economical aspects (para. 12 of the preamble).
According to the provisions of Regulation 1143/2014 IAS are not all alien species, but those
of them, which threaten the biodiversity and related ecosystem services (Art.3). From the
scope of the regulation excluded, among others, species which resettled naturally without
human impact (including those who change range because of the climate change and
changing in ecosystems, para. 7 of the preamble, Art. 2). IAS divided into two main groups:
IAS of the Union’s concern and IAS of member states’ concern (Art. 3). One of the main
ideas of the Regulation is the creation of the list of IAS of the Union concern (the Union list,
para. 10 of the preamble). It imposes specific obligations on all member states based on the
34 OJ 04.11.2014. L 317/35.
14
precautionary principle (para. 20 of the preamble) and the necessity to prevent the situations
when inactions of some member states would undermine actions of the others (para.18 of
the preamble).
Commission Implementing Regulation (EU) 2016/1141 of 13 July 2016 adopting a list of
invasive alien species of Union concern pursuant to Regulation (EU) No 1143/2014 of the
European Parliament and of the Council (Commission Implementing Regulat ion
2016/1141)35 adopted the Union list, which includes more than 30 IAS. Commiss ion
Implementing Regulation (EU) 2017/1263 of 12 July 2017 updating the list of invasive alien
species of Union concern established by Implementing Regulation (EU) 2016/1141 pursuant
to Regulation (EU) No 1143/2014 of the European Parliament and of the Council
(Commission Implementing Regulation 2017/1263)36 amends the original list. This
document recognizes 12 more species as IAS of the Union concern.
The EU regime on IAS recognizes the importance of monitoring, existing of centralized
information systems, transparency, accountability, surveillance, a scientific forum, risk
assessment, public awareness, inclusiveness of regional and local communities in common
actions towards the problem (para. 13, 28-30 of the preamble of Regulation 1143/2014).
According to Art. 24 (1) of the Regulation 1143/2014 by 1 June 2019 all member states
should submit their reports and then this obligation should be carried out once in every six
years37.
List approach towards the IAS problem also exists in the legislation of different countries.
Sometimes the problem is addressed by sectoral legislation (for example, agricultural law)
on federal and (or) states’ level, as in case of the United States38. Thus, according to § 1791
Louisiana Revised Statute (Acts 1995, No. 497, §1), in Louisiana, the Chinese tallow
(sapium sebiferum) is recognized as a noxious plant harmful to growth and development of
beneficial plants and pasture and may be destroyed wherever found in this state39.
35 OJ 14.07.2016. L 189/4. 36 OJ 13.07.2017. L.182/37. 37 On member states’ approaches towards IAS problem see, for example: Köck, 2015, p. 156-172. 38 Lewis– Porter. 2014, p. 171-201. 39 https://legis.la.gov/Legis/Law.aspx?d=85861 (07 February 2018).
15
According to the Executive Order 13112 of 3 February1999 “Invasive Species” (Executive
Order 13112)40 and the Executive Order 13751 of 5 December 2016 “Safeguarding the
Nation from the Impacts of Invasive Species” (Executive Order 13751)41, on the federal level
in the US special authorities – National Invasive Species Council (Council) and the Invasive
Species Advisory Committee – are established. Sec. 4 of Executive Order 13112 (as
amended by Executive Order 13751) establishes the obligation of the Council (which
combines Secretary of State, Secretary of Defense, and other authorities) to undertake
National Invasive Species Assessment. Both Executive Orders highlight the meaning of
National Invasive Species Management Plan, which includes among other things goals and
objectives of policy concerning IAS. The Council encourages planning and actions on
different levels, among all stakeholders (Sec. 4 (b) Executive Order 13112), and
collaboration of different actors is recognized as critical (Sec. 1 Executive Order 13751).
Executive Order 13751 also declares that IAS every year cost the US billions of dollars and
climate change influences the establishment, spread, and impacts of IAS.
Legal frameworks on IAS can include list approach (as in the EU or at states’ level of the
USA), management plans (federal and states’ levels of the USA), a combination of different
means with the inclusion of diverse net of stakeholders in decision-making and
implementation. Climate change is also mentioned in legal documents both as one of the
drivers behind intensification of the problem and as a factor, which facilitates movement of
species which is not included in regulated IAS issues if it does not have features of direct
human impact. Next subsection discusses the nexus between climate change adaptation and
norms on biodiversity protection from IAS in more details.
2.2.3 Climate change adaptation and its nexus with the regulation of biodiversity protection
from invasive alien species
United Nations Framework Convention on Climate Change, Rio de Janeiro, 4 June 1992, in
force 21 March 1994 (UNFCCC, entered into force for Canada 21 March 1994, for the
Russian Federation – 28 March 199542) established its objective as stabilization of GHG
concentration at level preventing dangerous anthropogenic interference with the climate
40 FR. 61 (25). 08.02.1999. Presidential Documents. 6183-6186. 41 FR. 81 (236). 08.12.2016. Presidential Documents. 88609-88614. 42 United Nations: Status of Ratification of the Convention.
16
system (Art. 2). This level should be achieved within a period, which allows ecosystems to
adapt naturally to climate change (Art. 2).
The UNFCCC also establishes obligations for its member states to include adaptation to
climate change into their policy, among other things to minimize the adverse effect of
climate change on the environment (Art. 3 (3), Art. 4 (1) (b, f).
Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto,
10 December 1997, in force 16 February 2005, 37 International Legal Materials (1998) 22
(Kyoto Protocol, Canada withdrew from the Protocol, date of notification 15 December
2011, date of effect 15 December 2012; in force with respect to the Russian Federation – 16
February 200543), while mainly focuses on mitigation issues also reaffirms the necessity of
adaptation (Art. 10 (b), 12 (8).
Despite mentioned legal provisions, the real shift towards importance of adaptation to
climate change relates to Paris Agreement, Paris, 12 December 2015, in force 4 November
2016 (Paris Agreement, in force with respect to Canada – 4 November 2015, the Russian
Federation signed the Agreement 22 April 2016 but did not ratify44). Establishing adaptation
as a global goal (including enhancing adaptive capacity, strengthening resilience and
reducing vulnerability to climate change, Art. 7(1), the Paris Agreement also highlights the
necessity of ensuring the integrity of all ecosystems and protection of biodiversity (the
preamble), combines adaptation, the ecosystem approach and environmental protection in
its further provisions (Art. 7 (5), (9, e).
As it was mentioned above, the main share of legal, political and academic attention under
the UNFCCC regime before the Paris Agreement was focused on climate change mitigat ion.
Even though adaptation now became of equal importance in relation with mitigation, it is
also can be distinguished into two parts: an adaptation of human systems and adaptation of
non-human natural systems, where the latter remains quite marginalized in comparison with
the former45.
43 United Nations: Status of Ratification of the Kyoto Protocol. 44 United Nations: Paris Agreement – Status of Ratification. 45 Trouwborst 2009, p. 419-442.
17
Notwithstanding, considering necessity of establishing interlinkages between clima te
change, biodiversity, and human rights regimes, and following approaches and princip les
which are recognised under the CBD (ecosystem approach, precautionary princip le
(approach), cost-effectiveness and benefit-sharing), E. Morgera poses the question: whether
the compliance mechanism under climate regime could provide the appropriate platform for
such a nexus?46 This question was posed before the adoption of the Paris Agreement but is
still relevant for the future development of the provisions of the Agreement mentioned above
considering the biodiversity regime.
COP to the CBD, which periodically arises issues on interconnection between biodivers ity
and climate change, 10 December 2016 adopted Decision XIII/4 “Biodiversity and climate
change”. COP in the Decision welcomes the Paris Agreement and its provisions on
biodiversity (para. 1), encourages different entities to integrate ecosystem approach into their
mitigation and adaptation policies (para. 4) and highlights the potential for synergies
between climate change adaptation and mitigation measures in protecting biodiversity and
reducing disaster risks in ecosystems (para.7).
In this context, the subsection will evaluate biodiversity adaptation to climate change in
relation to the problem of IAS. First, it should be mentioned that some aspects of IAS
problem concerning climate change were already noted previously. Thus, some mitiga t ion
actions as a shift towards biofuel mismatch with biodiversity protection policies and could
lead to the establishment of new IAS.
The scientific literature concerning climate change adaptation and IAS points out the
following. J.J. Hellmann et al. evaluate the relationship between IAS and changing climate
through the stages of invasion, or “invasion pathways”. First, the species, which have
potential to become invasive, live at the area of their traditional livelihood, then they are
transported to the new places (transportation stage), survive in new range (coloniza t ion
stage), growth in their population (establishment stage) and then spread the landscape
(landscape spread stage). Climate change alters transportation means and mechanisms, leads
to the establishment of new IAS, alters the impact of existing IAS, distribution of IAS and,
46 Morgera 2013, p. 390.
18
therefore, calls for altering of control strategies, enhancing monitoring and coordination
between stakeholders47.
CBD COP 10 Decision X/33 “Biodiversity and climate change” (29 October 2010) invites
parties and other entities to reduce non-climatic stresses including IAS in order to reduce the
negative impact of climate change for biodiversity (para. 8 (d, i). In this context, the fight
against IAS and development of controlling mechanisms as such became a part of adaptation
strategies, because reducing of this non-climatic stress on biodiversity is enhancing the
resilience of ecosystems and adaptive capacities of the species (para. 8 (d) of the Decision).
The issue of biodiversity adaptation to climate change in a context of IAS is not exhausted
by just a necessity to enhance protection of ecosystems from IAS introduced by humans.
The problem is much broader.
Climate change forces species to change their habitats and move to the north, at higher
latitudes and altitudes48. Such species also could become invasive in new territories and only
effective mitigation could stop this movement. While climate still changes, species which
move naturally without human introduction are usually accepted by legislation as native, not
alien species (as in the EU Regulation 1143/2014 mentioned in part 1.4 of the master’s
thesis).
The movement of species to new areas, affected by climate change is quite fast, but
sometimes not as fast as the changing climate, that is why A. Trouwborst believes that for
effective adaptation of ecosystems and species (especially those of them which are at the
edge of extinction) proactive policies are needed, otherwise, biodiversity protection will be
“deathbed conservation”49. This approach correlates with some of CBD COP decisions.
Thus, according to para 8 (d, iii) CBD COP 10 Decision X/33, development of connectivity
such as ecological corridors and ecological networks is needed.
One of the most debatable issues of proactive biodiversity adaptation means is such called
assisted migration, when humans can even translocate species for them to survive. Assisted
47 Hellmann et al. 2008, p. 534-543. 48 Trouwborst 2009, p. 419. 49 Trouwborst 2009; Trouwborst 2013.
19
migration arises critique by skeptics who put economic, ecological, ethical (on human
manipulation over nature) and legal arguments. Judicial practice in some countries (for
example in Finland) has already affirmed illegality of such actions50. The possibility of
human introduction of new species as adaptation measure needs further evaluation especially
in its correlation with IAS legislation because of possible invasiveness of such species in
their new habitat.
Due to the limited scope of the master’s thesis, it will be further focusing on legal framework
on IAS considering reducing of this stress on biodiversity as a mean for biodivers ity
adaptation to the changing climate, excluding other issues (such as assisted migration and
the issues related to it) from the scope of the paper.
Wrapping up the part on the nexus of climate change adaptation and biodiversity protection
concerning IAS it should be mentioned that new challenges and risks of invasiveness and
necessity to enhance protection of ecosystems from IAS as adaptation measure require better
implementation and further development of norms of biodiversity protection from IAS. A.
Trouwborst proposes following directions: 1) the effective implementation of existing law;
2) interpretation of existing norms in light of climate change regulation (especially bearing
in mind, that many of biodiversity protection legal instruments had been created before
climate change law and its parts on adaptation to changing climate); 3) modification of
norms; 4) creation of new regulation51. In the next part of the thesis, the connection of
previous general provisions of the paper with Arctic dimension of the problem will be
conducted.
2.2.4 Regulation of invasive alien species in the Arctic
M. Byers and J. Baker claim that the Arctic region is both fragile for climate change and
effects the climate that is why current international environmental cooperation begins and
ends in the Arctic52. C. Humrich believes that Arctic environmental problems are rooted in
other regions53. An attitude towards the Arctic as embedded and embedding region
combining with the previous statement calls for enhancing international cooperation54.
50 Borgström 2015, p. 69-82. 51 Trouwborst 2013, p. 324. 52 Byers – Baker 2013, p. 215. 53 Humrich 2017, p. 81-99. 54 Ibid, p. 81-99.
20
As the discussion on the status of Barents Sea snow crab have shown the provisions of
UNCLOS and CBD remains main legal frameworks for the Arctic-related IAS problems.
Nevertheless, other applicable Arctic-specific legal instruments (at least for further
development and interpretation) should be mentioned.
Arctic Environmental Protection Strategy (AEPS), Rovaniemi, 14 June 1991 as a result of
Finish government initiative and cooperation of 8 Arctic countries (Denmark, Sweden,
Norway, Finland, Iceland, USSR, USA and Canada) combined self-commitments of states
to assess potential environmental impact of the development and to conduct cooperative
actions.
In 1996, the Arctic Council was established (Declaration on the Establishment of the Arctic
Council, Ottawa, 19 September 1996, both Russia and Canada are participants). According
to para. 1 (a) of the Declaration the Arctic Council is a high-level forum for common
activities of participating states in the Arctic issues including sustainable development and
protection of the environment. According to para. 1 (b) the Council coordinates established
under AEPS entities including the Arctic Monitoring and Assessment Program (AMAP);
Conservation of Arctic Flora and Fauna (CAFF); Protection of the Arctic Marine
Environment (PAME); and Emergency Prevention, Preparedness, and Response (EPPR). In
2017, CAFF and PAME established Arctic Invasive Alien Species Strategy and Action Plan,
which is while remaining not binding document sets priorities for the Arctic Council and its
partners55.
While the Arctic Council remains overarching institute in the Arctic governance includ ing
environmental governance, some more specific forums also have been created. Thus,
according to Declaration on Cooperation in the Barents Euro-Arctic Region, Kirkenes, 11
January 1993 Barents Euro-Arctic Council (BEAC) was established (Russia is participat ing,
Canada is not). In Declaration on the 20th Anniversary of the Barents Euro-Arctic
Cooperation, Kirkenes, 3-4 June 2013, adaptation to the impact of climate change mentioned
as the main challenge requiring cooperation at national, regional, and local levels.
55 Conservation of Arctic Flora and Fauna and Protection of the Arctic Marine Environment: Arctic Invasive
Alien Species Strategy and Action Plan, 2017.
21
Bilateral and multilateral cooperation in the Arctic concerning the issues-specific protection
of the environment also takes place and it refers to historically first nature conservation
documents. One of the earliest examples is a cooperation on Northern fur seals protection
(Convention respecting Measures for the Preservation and Protection of the Fur Seals in the
North Pacific Ocean, Washington, 7 July 1911, in force 15 December 191156 (both Canada,
represented by the United Kingdom, and Russia are parties of the Convention)57.
Other examples of such segmented cooperation are: Agreement on the Conservation of Polar
Bears, Oslo, 15 November 1973 (in force, both Russia and Canada are participating),
Inuvialuit – Inupiat Polar Bear Management Agreement in the Southern Beaufort Sea, 4
March 2000 (as an example of cooperation of indigenous people on nature conservation),
Convention on Future Multilateral Cooperation in Northeast Atlantic Fisheries, London, 18
November 1980, in force 17 March 1982 (NEAFC Convention, Russia is contracting party,
Canada is cooperating non-contracting party58).
Considering IAS problem, the issues of shipping are in focus especially concerning
Northwest Passage and Northern Sea Route. The main legal instrument of cooperation of the
Arctic states in this realm is the BWM Convention mentioned in part 1.4 of the master’s
thesis.
Other environmental issues, which are in focus of the legal instruments on the Arctic
cooperation, are a radioactive waste and nuclear accidents issues, deep-sea mining, air-borne
pollution including persistent organic pollutants, Arctic haze, black carbon, oil spills and
others59.
To wrap the part on Arctic dimension of biodiversity adaptation to climate change
concerning IAS problem up it could be concluded that despite IAS is not critical nowadays
its significance grows and requires enhancing cooperation considering precautionary
principle, the ecosystem approach and the idea of prevention of IAS. In this context, existing
56 Australian Treaty Series. 1913. # 6. 57 Byers – Baker 2013, p. 171. 58 North-East Atlantic Fisheries Commission. 59 Byers – Baker 2013, p. 171-215.
22
and emerging legal instruments of the Arctic cooperation both general (as Arctic Council)
and sector-specific importance (as species-specific protection treaties) are crucial.
2.3 Conclusion
Based on provisions of the Chapter following is concluding:
1. IAS are non-native species which cause or to a high degree of certainty can cause
damage to their new environment and biodiversity, are intentionally or
unintentionally introduced by people.
2. Control, containing and eradication are the main measures towards the IAS problem.
3. Obligations of states to protect biodiversity from such species explicitly or by
implication expressed in different international hard and soft law legal instruments,
where Art. 8 (h) of CBD could be seen as an umbrella frame.
4. Ecosystem and precautionary approaches, idea of prevention, transparency, and
cooperation – are the key pillars of biodiversity protection from IAS.
5. Under climate change obligations protection biodiversity from IAS is a specific non-
climatic mean of adaptation expressing in enhancing the resilience of ecosystem and
improving adaptive capacities of species.
6. General and specific legal instruments to protect the environment in the Arctic could
be used for further actors’ cooperation in their attempts to minimize the adverse
effect of climate change in the region, including issues of introduction and altering
IAS in the region.
Bearing in mind these as a pre-requisite, next chapters evaluate Russian and Canadian legal
frameworks.
23
CHAPTER 3. A LEGAL FRAMEWORK ON INVASIVE ALIEN
SPECIES IN CANADA
3.1 General outline
The necessity first to determine Canadian legislation devoted to the issues of IAS and then
to assess its Arctic dimension predefines the structure of this chapter. On the reason of
coexistence of different definitions of the Arctic, the division of the Arctic and non-Arctic
territories could not be strict (especially bearing in mind ecosystem approach).
Thus, Johansson et al. in their research concerning IAS in the ballast water of the vessel M/V
Arctic that goes from Quebec City to Deception Bay (all ports are within Canada) describes
their research as conducting on the Canadian Arctic60. It shows that Arctic research agenda
could embed for example New Foundland and Labrador, Quebec and even Ontario. It is
significant to consider that, as the previous chapter mentioned, the Arctic problems roots in
the regions outside the Arctic, which once again highlights interdependency of the territories,
and difficulties in distinguishing exact Arctic issues.
In the master’s thesis, such a geographical but narrower approach to the Canadian Arctic
will be in use. According to one of the definitions, the Arctic is the territory located north of
the Arctic Circle61. In Canada lands which are located north of the Arctic Circle included in
Yukon, Northwest Territories and Nunavut, also Canadian Arctic embedded north marine
territories and the continental shelf (map of Canadian provinces and territories is provided
in Figure 1). Thus, the Canadian approach is tied to geography in contrast to the Russian
one, which is administrative as the next chapter, will show.
Section 3.1 will give an overall outlook on the issue. Section 3.2 of the master’s thesis is
devoting to general legislation on IAS. Section 3.3 describes Arctic-specific legisla t ion
applicable to the topic. The chapter will be wrapped up by the general conclusion in section
3.4.
60 Johansson et al. 2017, p. 567-576 61 Dictionary.com: Arctic
24
Figure 1. Canadian Provinces and Territories62
While the issues of IAS are in focus of Canadian scientific literature, A.L. Smith et al. claim
that it is more the realm of natural science, while social science perspective on IAS,
especially its connection with climate change issues remains in its infancy.63
Notwithstanding, despite this comment, the risk of invasiveness of new species in Canada is
recognized. The main areas of possible development of the IAS problem in Canada include
the appearance of new niches from species which could not adapt to the changing climate,
removal tundra by boreal forest, expanding species from southern regions (especially – the
US), and opening the Northwest Passage (as sea corridor from Asia to Europe through
Canadian Arctic Archipelago and northern coasts of North America)64.
Further, the subsection describes the specificity of Canadian federalism which is relevant for
understanding the legal context of environmental legislation (and – in more narrow sense –
the legal framework on IAS).
62 Guide of the World: Canada Map with Provinces . 63 Smith et al. Environmental Reviews 2012, p. 1-16 64 Ibid, p. 1-16.
25
According to the Declaration of Union (section 3 of British North America (BNA) Act,
186765) Canada was formed as a One Dominion of the Provinces of Canada, Nova Scotia,
and New Brunswick. According to section 6 of the BNA Act, the Province of Upper Canada
formed the Province of Ontario and the Province of Lower Canada formed the Province of
Quebec. Provisions of section 5 of the BNA Act with further amending acts established
Canada as a federation of ten provinces (Ontario, Quebec, Nova Scotia, New Brunswick,
Manitoba, British Columbia, Prince Edward Island, Alberta, Saskatchewan, New Foundland
and Labrador) and three territories (Yukon, the Northwest Territories, Nunavut). The
northern Arctic lands of Canada are in the status of territories distinguishing from provinces
by lack of inherent sovereignty.
According to subsections 91 (10-13, 24) of the BNA Act, Canadian Parliament is empowered
over such issues as navigation and shipping, quarantine and marine hospitals, seacoast and
inland fisheries, ferries and Indians and lands reserved for them. Canadian provinces have
exclusive legislative rights over management and sale of public lands of provinces, timber
and wood, and all matters which are local and private in nature (subsections 92 (5, 16) of the
BNA Act). According to section 109 of the BNA Act, lands, mines, minerals, and royalties
remain in the provincial property.
As A. S. Huque and N. Watton claim, such a pattern of division of powers between federal
center and regions led to some obstacles in environmental issues66. Among them, the lack of
federal power in establishing and implementing of united environmental policy.
Nevertheless, considering common law features of Canadian legal system the position of the
Supreme Court is critical according to which federal authorities could establish some
measures if province unable to do so, as they did in a case of pollution control67.
The other obstacles are the necessity for federal authorities to negotiate with provinces,
which is lengthy and costly, and the protection of industries by provinces’ policies68. The
65 Department of Justice, Canada: A Consolidation of the Constitution Acts 1867-1982. 01 January 2013
[http://laws-lois.justice.gc.ca/PDF/CONST_E.pdf] (12.02.2018). 66 Huque – Watton Public Organization Review, p. 71-88. 67 Ibid, p. 71-88. 68 Ibid, p. 71-88.
26
latter means that strict provincial norms could lead to a relocation of industries to the
jurisdiction of other provinces69
Notwithstanding, now the ‘new public management’ ideas are also enhancing such as a
collaboration with private sector and other stakeholders in environmental issues which drives
environmental policy forward despite the obstacles mentioned above70.
3.2 Canadian legislation on invasive alien species
3.2.1 Federal legislation
The federal level in Canada includes both strategies, plans and programs on IAS, on the one
hand, and quite detailed sectoral legislation on IAS, on the other hand. There is also a call
for common legal framework combining different existing pieces of legislation on IAS in
Canada. The obstacles are in the specificity of Canadian federalism and quite strong powers
of provinces in areas concerning the environment, which alleviates somehow by new trends
in governance, such as including private sectors and other stakeholders among provinces and
federal authorities.
While just 16 IAS cost Canada $13.3-4.5 billion every year71, there is no holistic and
focusing on IAS legal framework at the federal level. In addition, even if it would be, as
A.L.Smith, D.R. Bazely, and N. Yan claim without political will towards the problem law
would remain elusive72.
Despite the fragmentation, IAS directly or indirectly concerned in federal law, strategies ,
and plans. Further, the subsection will mention some relevant pieces of legislation and
political statements considering characteristics, which A.L.Smith, D.R. Bazely, and N. Yan
noticed. According to them, first, the terminology of the acts is different: “invasive alien
species”, “pests”, “hazards”, and “weeds”73. Secondly, that acts usually not follow attitude
to IAS as a combination of both impact (“invasive”) and origin (“alien”) criteria74. Thirdly,
all these acts were established at different times, by different rulers and for different
69 Ibid, p. 71-88. 70 Ibid, p. 71-88. 71 Smith – Bazely– Yan Biological Invasions. 2014, p. 1325. 72 Ibid, p. 1325-1344. 73 Ibid, p. 1341. 74 Ibid, p. 1341.
27
purposes, mainly before IAS as a problem were put in policy agenda75. Finally, some pieces
of regulation and policies could be in contradiction with each other: species could be
attractive for trade purposes, but could simultaneously have features of IAS, as in case of
common carp76.
As the chapter 1 of the master’s thesis mentioned, Canada is a party of the CBD and therefore
obliged by provisions of its Art. 8 (h) on the protection of biodiversity from IAS. According
to Art. 6 of the CBD, each party shall develop national strategies, plans, and programs. As a
response to its CBD obligations, Canadian Biodiversity Strategy 1995 was launched77. The
Strategy uses the term “harmful alien organisms” and provides such examples of them as
sea lamprey and zebra mussels in Great Lakes ecosystems. While listing general means to
protect ecosystems from such organisms, the Strategy also highlights that release of alien
organisms will not support conservation of biodiversity.
Next program document as a collective effort of federal government and other stakeholders
is An Invasive Alien Species Strategy for Canada78. According to the document, hierarchica l
approach to IAS was established with following priorities: 1) prevention; 2) early detection;
3) rapid response to new IAS; 4) management including control, eradication, and
containment).
There are also some sectoral documents, for example as A Canadian Action Plan to Address
the Threat of Aquatic Invasive Species79.
The documents mentioned above while overarching the IAS problem remain documents of
soft law character. Further, the subsection assesses the Canadian federal legislation in the
narrow meaning of this word. Despite an absence of a common multisectoral framework, the
IAS problem is in focus of sectoral legally binding documents. Further, four documents of
such type will be mentioned with a more detailed observation of regulation concerning
aquatic IAS.
75 Ibid, p. 1341. 76 Smith – Bazely– Yan Biological Invasions. 2014, p. 1325-1344. 77 Canadian Biodiversity Strategy: Canada’s Response to the Convention on Biological Diversity, 1995. 78 An Invasive Alien Species Strategy for Canada, September 2004. 79 Canadian Council of Fisheries and Aquaculture Ministers: A Canadian Action Plan to Address the Threat
of Aquatic Invasive Species, September 2004.
28
In Canada following legislative acts provide regulation on IAS: the Plant Protection Act,
current to 30 January 2018, last amended on 27 February 201580 (provisions on pests), the
Canada Shipping Act, 2001, current to 30 January 2018, last amended on 12 December
201781 (provisions on prevention and reduction the release by vessels harmful organisms or
pathogens), the Health of Animal Act, current to 30 January 2018, last amended on 27
February 201582 (importation animals into Canada), the Fisheries Act, current to 30 January
2018, last amended on 5 April 201683. The later act mentions invasive species directly.
According to paragraphs 43 (1) (n, o) and subsections 43 (2, 3) of the Fisheries Act, the
Governor in Council empowered to establish a list of aquatic invasive species and
regulations in order to control such species. The Governor in Council also can establish in
regulations ministerial authorization on including and excluding species in/out of the list.
Such regulations were enshrined in 2015 (Aquatic Invasive Species Regulations (AISR), 28
May 2015, current to 30 January 2018,84).
According to general provisions of the AISR, before launching the regulations Minister
should calculate the costs of implementation (section 3) and in a case of contradiction of the
AISR and other regulations under the Fisheries Act, the AISR is prevail.
As it is seen from the name of AISR these regulations embed both indigenous and non-native
species. As an annex to the AISR, there is a schedule from three parts, where the part 2 is a
list of species subjects to prohibitions and controls and part 3 is a list of species subject to
controls only in areas where they are not native. Sections 6-9 of the AISR establish four
types of prohibitions such as a prohibition of importation, possession, transportation, and
release. This is reflected in part 2 of the schedule, where opposite to name (common and
scientific) the prohibitions are mentioned, conditions and territories of prohibitions are
described. Thus, item 1 of part 2 of the schedule is a grass carp (Ctenopharyngodon della),
these species are prohibited to import, possess, transport, and release in dead and eviscerated
conditions throughout all Canadian territories. The total amount of items in part 2 of the
80 S.C. 1990, c. 20. [http://laws-lois.justice.gc.ca/PDF/P-14.8.pdf] (12.02.2018). 81 S.C. 2001, c. 26. [http://laws-lois.justice.gc.ca/PDF/C-10.15.pdf] (12.02.2018). 82 S.C. 1990, c. 21. [http://laws-lois.justice.gc.ca/PDF/H-3.3.pdf] (12.02.2018). 83 R.S.C., 1995, c.F-14 [http://laws-lois.justice.gc.ca/PDF/F-14.pdf] (12.02.2018). 84 SOR/2015-121 [http://laws-lois.justice.gc.ca/PDF/SOR-2015-121.pdf] (12.02.2018).
29
schedule is 89 species. Section 10 of the AISR established following rule towards non-native
species: generally, their introduction is prohibited; federal and provincial authorities can
establish otherwise. This prohibition is reflected in part 3 of the schedule, which includes 14
species of such a prohibition. The AISR also consist some exemptions. Thus, according to
paragraphs 13 (a) (i, iii) educational institutions, zoos, and aquariums are excluded from
prohibitions of sections 6-9. Situations of emergency excluded from all prohibit ions
(sections 6-10, section 12).
3.2.2 Legislation of provinces
Concerning provinces’ level of regulation, this subsection first mentions Ontario as the most
populous province in Canada and a province with the most innovative legislative attitude
towards the IAS problem. Ontario enshrined its Invasive Species Act in 201585, also
establishing Ontario Regulation 354/16: General, in force on 3 November 201686 under that
Act.
Before launching a single legal act towards the IAS, Ontario legal framework concerning
the issue was represented by sectoral acts, which are still relevant to the topic. They are
following: Fish and Wildlife Conservation Act, 199787 (breach of introduction into Ontario
species on which licenses are needed without such licenses – section 53), Forestry Act88
(forest tree pests’ regulation), Pesticides Act89, Provincial Parks and Conservation Reserves
Act, 200690.
The Ontario model of IAS specific regulation is based on Invasive Species Act, which
establishes a legal framework, principles, and rules of regulation and imposes penalties, and
Ontario Regulation, which enshrines lists of species and adds some provisions on
prohibitions and restrictions.
85 S.O. 2015, c. 22. [https://www.ontario.ca/laws/statute/15i22/v1?search=invasive+species] (12.02.2018). 86 S.O. 2015, c. 22. [https://www.ontario.ca/laws/regulation/160354/v1?search=invasive+species]
(12.02.2018). 87 S.O. 1997, c. 41. [https://www.ontario.ca/laws/statute/97f41]. 88 R.S.O. 1990, c. F.26 [https://www.ontario.ca/laws/statute/90f26] (12.02.2018). 89 R.S.O. 1990, c. P.11 [https://www.ontario.ca/laws/statute/90p11] (12.02.2018). 90 S.O. 2006, c. 12 [https://www.ontario.ca/laws/statute/06p12] (12.02.2018).
30
According to the Ontario rules, invasive species are those who are not native in Ontario and
harmful for the environmental (if they already exist there) or likely to be harmful (no matter
if they already exist in Ontario or not) (preamble of the Act).
All species are divided into two main groups: prohibited and restricted species, for the latter
a list of prohibitions is shorter (sections 7, 8 of the Act). The Regulation contains four tables,
where all of the species included in tables are IAS but first three tables consist of prohibited
species and the latter fourth table is devoted to restricted species. First table consists of three
invertebrates (for example Common Yabby), second table consists of five plants (for
example Brazilian Elodea), the third table is a list of eight fishes (among which is, for
example, Bighead Carp), and the fourth table of restricted species embeds four plants (for
example Black Dog-Strangling Vine).
According to the Act, Minister of Natural Resources and Forestry imposes prevention and
approves response plans (section 13 and further), the Act also establishes inspections
(section 15 and further). The Regulation makes some clarifications. Thus, according to
section 6 of the Regulation, a person who catches a member of IAS while fishing discharges
from responsibility if he or she has a license for fishing, catch the member of IAS
incidentally, and immediately destroy this member of IAS in a way, which prevent further
propagating, and reproducing of IAS.
The penalties establishing for breaching the prohibitions and restrictions are strict. Thus, if
a breach is the first offence the maximum fine for companies is $ 1 000 000, for a person -
$ 250 000. For second and subsequent offences the maximum fine for companies - $
2 000 000, for persons - $ 500 000. Persons could also be imprisoned maximum for one year
(this rule applicable for both first and subsequent offences, the imprisonment could be
instead of a fine or complementing it, paragraphs 44 (1) (a, b) of the Act). In case of breach
of prohibitions or restrictions concerning two or more members of IAS, penalties mult ip ly
but following the rules on maximum levels of penalties (subsection 44 (2) of the Act). A
judge can also impose other penalties and restrictions such as an order against a perpetrator
to engage in any activities, which led to an offence (subsection 45 (1).
31
Thus, Ontario norms on IAS are not only holistic in their nature and innovative as an
approach of provincial regulation toward the issue but also have quite strict penalties for
breaching them.
Another example, which arises from provincial activities in Canada towards IAS issue, is
the participation of Canadian province Quebec in common institutions with the US states
(Vermont and New York) to protect the environment of Lake Champlain basin from IAS91.
Lake Champlain is in connection with other water basins in the region including the Great
Lakes and it is known that there are 48 aquatic invasive species in Lake Champlain and 183
– in the Great Lakes92. Established through cooperation between sub-national entities
mentioned above Rapid Response Workgroup of Aquatic Nuisance Species Subcommittee
of Lake Champlain Basin Program enshrined Lake Champlain Basin Rapid Response Action
Plan for Aquatic Invasive Species (further – RRAP) in May 200993.
According to RRAP, in every sub-national entity leading agencies are identified (usually,
regional ministers of the environment) which will be co-work with other relevant
stakeholders in order to follow the RRAP. Rapid Response Task Force also was established
by combining technical experts and resource managers from all sub-national entities
involved to facilitate and promote cooperation between actors for implementing RRAP.
According to the document, five steps approach towards IAS was introduced: 1)
confirmation of aquatic invasive species; 2) delineation, isolation, and preliminary
evaluation; 3) treatment selection; 4) treatment plan implementation; 5) monitoring and
evaluation. According to the introduction of RRAP, this document should be a blueprint for
officials in every participating entity. M.D. Modley believes that this inter-jurisdictiona l
approach towards IAS could be extrapolated to other shared basins in the world94.
Thus, provincial legislation like a federal one can have quite diverse norms concerning IAS.
In case of Ontario, overarching act on IAS with implementing regulation and strict sanctions
took place. Quebec demonstrates an example of inter-jurisdictional cooperation on the issue
with sub-national entities from the other country. Such an approach could be useful for both
91 Modley Water SA. 2008, p. 476-480. 92 Ibid. 93 Rapid Response Work Group of Aquatic Nuisance Species Subcommittee, Lake Champlain Basin Program:
Lake Champlain Basin Rapid Response Action Plan for Aquatic Invasive Species. May , 2009. 94 Modley Water SA. 2008, p. 479.
32
sub-national actors and states because the issue of IAS is transnational and ecosystem
approach towards it requires bilateral and multilateral cooperation.
Despite the significance of legal frameworks in provinces and their role towards the issue
including cooperation with other jurisdictions, the call for a common federal legal
framework on IAS is viable.
Climate change adaptation framework also could be used as an umbrella approach towards
IAS in Canada as an adaptation measures enhancing resilience of biodiversity to changing
climate95. Thus, according to Final report of Canadian Working group on adaptation and
climate resilience, evaluation of legislation and other regulatory instruments could be a first
step in enhancing ecosystem resilience, while the integration of climate change consideration
into all environmental management, including biodiversity conservation and work to address
IAS is needed (option 13)96.
The role of federal authorities in developing cross-country nexus of climate change
adaptation and biodiversity protection is critical. According to Federal Adaptation Policy
Framework, the mission of federal level – is setting priority, especially by using its
legislative power in integration adaptation in federal policy and in issues of its sole
responsibility (Fist Nations and Inuit, oceans, international and inter-provincial issues)97.
3.3 Arctic-specific Canadian legislation relevant to the protection of Arctic ecosystems
from invasive alien species
Despite an absence of such a piece of legislation as Ontario Invasive Species Act concerning
the protection of the Arctic ecosystems from IAS in Canada, in this part of the master’s
thesis, Arctic-specific official documents and legislation will be assessed for identifica t ion
of their ability to be a future driver for legal development in the realm. First, the subsection
will address historical aspects of Canadian legal attitude towards Arctic issues, and then it
will concern some modern documents on regulation in Canadian Arctic, which in our
opinion could be a platform for future development of IAS regulation in the region. Finally,
95 The other possible ways of constructing the common framework are biodiversity legislation as a vehicle as
in case of Norway, South Africa, and Australia or the concept of threat to biosecurity as in New Zealand. See:
Smith – Bazely– Yan Biological Invasions. 2014, p. 1325-1344. 96 Working group on adaptation and climate resilience: Final report. 97 Federal Adaptation Policy Framework .
33
this part of the master’s thesis will observe Yukon, Northwest Territories and, Nunavut
relevant regulation, in particular, concerning the environment and socio-economic
assessment.
Canada shows its environmental concern towards the Arctic in 1960-70s in their tension with
the US which intended to use the Arctic water corridors to transport oil98.
An Act to prevent pollution of areas of the Arctic waters adjacent to the mainland and islands
of the Canadian Arctic, current to 30 January 2018, last amended on 1 April 2014 (Arctic
Waters Pollution Prevention Act, AWPPA)99 highlights in its preamble Canadian offic ia l
priorities in Arctic issues and defines what arctic waters mean according to Canadian
legislation. Thus, the AWPPA preamble establishes that for Canada, it is both important to
exploit its natural resources and to ensure that development, exploitation, and navigation in
the Arctic would be conducted in recognition of Canadian responsibility for welfare of First
Nations and other habitants and maintenance of peculiar ecological balance in water, ice ,
and land of Canadian Arctic. According to section 2 of the AWPPA, arctic waters are: 1) the
internal waters of Canada, 2) its territorial sea, 3) exclusive economic zone (EEZ) within the
area enclosed by 1) the 60th of north latitude, 2) the 141st meridian of west longitude, and 3)
the outer limit of EEZ on the boundary with Greenland.
Arctic Waters Pollution Prevention Regulations, current to 30 January 2018100 was
established under the AWPPA with detailed provisions. Such model (the AWPPA and the
regulations) is an example of Canadian Arctic-specific legislation, which could be used as
one of the ways to develop Canadian regulation on the protection of Arctic biodiversity from
IAS.
Soft law instruments on climate change also provide Arctic-specific provisions, which are
relevant for further actions toward IAS problems. The federal government in collaboration
with provinces, territories and indigenous people establishes Pan-Canadian Framework on
Clean Growth and Climate Change101. According to paragraph 4.4. (4) of the Framework,
98 Ibid, p. 4-22. 99 R.S.C., 1985, c. A-12 [http://laws-lois.justice.gc.ca/PDF/A-12.pdf] (14.02.2018). 100 C.R.C., c. 354. [http://laws-lois.justice.gc.ca/PDF/C.R.C.,_c._354.pdf] (14.02.2018). 101 Pan-Canadian Framework on Clean Growth and Climate Change: Canada’s Plan to Address Climate
Change and Grow the Economy.
34
federal, provincial and territorial support for adaptation efforts and protection of Arctic
ecosystems is a new action for supporting particularly vulnerable regions as a part of a plan
in adaptation and climate resilience.
As monitoring and prevention are critical actions concerning IAS problem, and new
industries in developing north territories could be a source for new IAS introduction,
regulation on Canadian Arctic territories could be a contribution into the issue in part of the
legislation on environmental and socio-economical assessment and planning. Thus, the
purpose of An Act to establish a process for assessing the environmental and socio-economic
effects of certain activities in Yukon, current to 30 January 2018, last amended on 14
December 2017 (the Yukon Environmental and Socio-economic Assessment Act)102 is to
ensure that before launching a project environmental issued was considered (paragraph 5 (2)
(b), and to protect and maintain environmental quality and heritage resources (paragraph 5
(2), (c). The Act recognizes the environment as Earth components, which include, in
particular, living organisms and the interacting natural systems (subsection 2 (1). Thus, the
protection of the environment by the Act should include among other things ecosystems and
biodiversity protection.
Acts on two other northern territories of Canada provide norms on environmental protection
similar to Yukon Environmental and Socio-economic Assessment Act. Among them are An
Act to provide for an integrated system of land and water management in the Mackenzie
Valley, to establish certain boards for that purpose and to make consequential amendments
to other Acts, current to 30 January 2018, last amended 12 December 2017 – Mackenzie
Valley Resource Management Act103 and An Act respecting land use planning and the
assessment of ecosystemic and socio-economic impacts of projects in the Nunavut
Settlement Area and making consequential amendments to other Acts, current to 30 January
2018, last amended on 12 December 2017 – Nunavut Planning and Project Assessment
Act104.
Despite an absence of IAS provisions in Arctic-specific legislation of Canada, the following
should be concluded. Canada shows its environmental concern in its Arctic policy which
102 S.C. 2003, c. 7 [http://laws-lois.justice.gc.ca/PDF/Y-2.2.pdf] (14.02.2018). 103 S.C. 1998, c. 25 [http://laws-lois.justice.gc.ca/PDF/M-0.2.pdf] (14.02.2018). 104 S.C. 2003, c. 14, s. 2 [http://laws-lois.justice.gc.ca/PDF/N-28.75.pdf] (14.02.2018).
35
reflects in Arctic-specific regulation (on water pollution prevention). This model of a ruling
(Arctic-specific sectoral act and regulations under the Act) could be a base for future legal
development concerning IAS problem. The other Arctic-specific means of applicable
regulation are the norms on environmental assessment and planning in Arctic territories
(Yukon, Northwest Territories, Nunavut). The next section provides an overall conclusion
for the chapter.
3.4 Conclusion
The legal framework on IAS in Canada can be characterized by following:
1. Canadian legislation and policy documents illustrate that Canada officia l ly
recognizes IAS as a problem.
2. Canadian federalism frames legislative attitude towards the problem. Canada is a
federation of ten provinces and three territories, where provinces have strong
legislative powers in different issues concerning the environment, which is an
obstacle for establishing overarching federal environmental policy and legislation.
3. All three territories of Canada are located in the Arctic (Yukon, Northwest
Territories, Nunavut). Canadian Arctic also includes to some extent other areas.
4. Federal legislation on IAS is fragmented, sectoral based and uses different
terminology. The most detailed federal regulation is about aquatic invasive species.
5. Soft law mechanisms and climate change frame could be unifying factors in federal
approach towards the IAS problem.
6. Provinces have different legal instruments towards the IAS problem. Ontario
Invasive Species Act and Regulation under the Act with their detailed provisions,
IAS list approach, and strict sanctions including fines, imprisonment, and restrictions
in activities is an example of innovative umbrella regulation for biodivers ity
protection from IAS at the provincial level.
7. Canadian province Quebec is participating in inter-jurisdictional cooperation with
the US states Vermont and New York on the common management of Lake
Champlain including cooperation on IAS problem which also could be used as a
model for further regulation of the biodiversity protection from IAS both at nationa l
and sub-national levels.
8. Arctic-specific regulation while does not provide rules on IAS problem shows
Canada’s concern on environmental protection of the Arctic (especially, concerning
36
Arctic waters’ protection from pollutions by specific Act and Regulations, which also
could be a base for further legislation on Arctic biodiversity protection from IAS).
9. Legislation concerning environmental assessment and planning before launching
new projects in the Arctic (Yukon, Northwest Territories, and Nunavut) also could
be regarded as a part of a legal framework for the protection of Arctic ecosystems
from IAS.
37
CHAPTER 4. A LEGAL FRAMEWORK ON INVASIVE ALIEN
SPECIES IN RUSSIA
4.1 General outline
The pattern of discussion on the legal framework of the Russian Federation towards
biodiversity protection from IAS will be the same as in case of Canada. First, the chapter
gives a general outline on the situation with IAS in Russia, draws attention on a specific ity
of Russian federalism concerning environmental legislation and shows, which territories of
the Russian Federation recognized as the Arctic territories. Then, section 4.2 observes
Russian legislation on IAS both from federal and regional (subjects of the Russian
Federation) perspectives. Section 4.3 provides information on Arctic-specific legisla t ion
relevant to the topic (including legislation of the subjects of the federation). Section 4.4 will
give an overall conclusion of the chapter.
Russian and foreign authors recognize the problem of IAS in Russia and the significant
amount of scientific literature is devoted to the IAS discussion. However, the discourse is
mainly a prerogative of natural science105, while social science does not have the issue in its
focus; especially this note concerns remote areas of Russia. M.V.Olonova and Y. Zhang
explain an absence of attention towards IAS in Siberia by low agricultural productivity and
low density of population in the region, while severe climate in their opinion is also one of
the reasons of low interaction among species and a natural obstacle for distribution of new
species106. The authors also claim that the changing climate and enhancing economic
activity will change the situation and force drawing attention towards the issue107. This
observation could also be relevant to the issue at the Russian Arctic.
105 Some examples of modern research on IAS in Russia are: Korzun-Kassal 2012, p. 57-65 (Корзун – Кассал
2012, c. 57-65) (the research conducting in Omsk Region, Russia shows that among 22 fish of Omsk basin 14
are native and 8 are alien, one of alien species - Carassius auratus was intentionally human introduced and
now forms 90 % of local fisheries); Abramova 2012, p. 324-330 (Абрамова Л.А. 2012, c. 324-330) (In the
Bashkortostan Republic of the Russian Federation the share of invasive spices is from 10 to 99 % depending
on the location, mainly the invasive species are of North American origin and the largest invasion was in 1975
from Russian southern regions and Ukraine when during the drought seeds of invasive plants were introduced
with feed. The distribution of invasive species in the region achieved 180 species, including 28 IAS and more
than 40 potentially IAS. One of the main threat to local biodiversity is IAS of Ambrosias. They also affect
human health (allergy); Shchuka – Shchuka 2016, p. 86-108 (Щука – Щука 2016, с. 86-108). 106 Olonova – Zhang Journal of Arid Land. 2013, p. 428-433. 107 Ibid, p.430.
38
Despite restraint of social science towards IAS in Russia, natural scientists in their research
call for a widening of social involvement in combating with IAS108. Russian natural
scientists also launch the projects of so-called “Black books” – lists of IASs combined by
professionals in biology which provide society in general and authorities in particular with
relevant information on IAS in lack of relevant legislative norm and other sources109.
Inspired by “Black book of flora of Central Russia”, published in 2010, “Black book of flora
in Tver Region” was created and now scientists actively participate in their work on “Black
books” in Bryansk Region, Voronezh Region, Ivanovo Region, Kaluga Region, Lipetsk
Region, Ryazan Region, Tula Region and the Republic of Mordovia110.
For better understanding and assessment of the legislation on IAS in Russia in searching for
possible ways of its future development, this section provides main features of Russian
federalism in relation to environmental issues.
According to Art. 5 (1) of the Constitution of the Russian Federation, adopted at national
voting on 12 December 1993, in force 25 December 1993111, Russia consists of republics,
territories, regions, cities of federal importance, an autonomous region and autonomous
areas – all equal subjects of the Russian Federation. The division of jurisdiction between
Russia and its subjects is carried out as follows: in some issues Russia enjoys exclusive
jurisdiction (the Constitution provides the list of the issues), in other issues Russia and its
subjects enjoy joint jurisdiction (the Constitution provides the list of the issues), and all
remaining issues (no list in the Constitution) are the realm of exclusive jurisdiction of the
subjects.
Concerning environmental issues, the distinction of powers is following. According to Art.
71 (f)112 of the Constitution, the establishment of the principles of federal policy and federal
programs of environmental development is an issue of exclusive jurisdiction of Russia. The
Russian Federation adopts the federal constitutional law and federal law for these issues,
which have direct action at the whole territory of Russia (Art. 76 (1).
108 Abramova 2012, p. 330. (Абрамова Л.А. 2012, c. 330). 109 Starodubtseva-Morozova-Grigorjevskaya 2014, p. 133-149 (Стародубцева – Морозова – Григорьевская
2014, c. 133-149). Black book of Central Russia (Черная книга флоры Средней России. Чужеродные виды
растений в экосистемах России: Экспансия чужеродных видов). 110 Ibid, p. 133. 111 Rossijskaya Gazeta. 1993. December 25. 112 In numeration according to the Russian alphabet – Art. 71 (e).
39
Nature utilization, protection of the environment, ensuring of ecological safety, specially
protected natural territories (Art. 72 I113, land, water, and forest legislation, legislation on
subsoil and environmental protection legislation (Art. 72 (j)114 are the issues of joint
jurisdiction. According to Art. 76 (2) of the Constitution, the Federation adopts legisla t ion
and subjects – their laws and other normative acts according to the federal legislation.
Thus, IAS is emerging issue in Russia, well established in natural science and predictably
drawing attention in social sphere especially considering climate change and further
development. Russian federative structure allows the federal level to establish its
environmental policy and together with the subjects of the Russian Federation develop
environmental legislation. This is a general context for addressing IAS legal issues.
In order to distinguish general legislation on IAS and Arctic-specific legislation towards the
issue, the delimitation of Russian Arctic is significant. Presidential Decree, 02 May 2014, #
296 “On overland territories of the Arctic zone of the Russian Federation”115 provides the
ground for the delimitation and Figure 2 reflects such an approach.
According to the Decree, following Russian overland territories are Arctic (numbers on the
map, Fig. 2 correlates to numbers providing further): 1. Murmansk Region, 2. Republic of
Karelia (some parts of the Republic), 3. Arkhangelsk Region (some parts of the Region,
including city Arkhangelsk), 4. Nenets Autonomous Area, 5. Komi Republic (city of
Vorkuta), 6. Yamal-Nenets Autonomous Area, 7. Krasnoyarsk Territory (some parts), 8.
Republic of Sakha (Yakutia) (northern parts of the Republic), 9. Chukotka Autonomous
Area. The decree also recognizes Arctic islands as overland territories of the Arctic zone.
While Canadian approach is strictly geographical, the Russian one is administrat ive.
Nevertheless, the provisions of the Decree mainly reflect the geographical perspective to
define territories as the Arctic if they are located north of the Arctic Circle.
113 In numeration according to the Russian alphabet – Art. 72 (д). 114 In numeration according to the Russian alphabet – Art. 72 (к). 115 Sobranie zakonodatelstva RF. 2014. 5 May. # 18. Part I. st. 2136.
40
Figure 2. Russian Arctic Zone116.
Following this distinction, section 4.2 concentrates on Russian legislation on IAS binding
for all territories of the country and observes some legislation of non-Arctic subjects of the
Russian Federation, section 4.3 focuses on legislation relevant for the overland Arctic
territories mentioned above and other types of territories of the Arctic under Russian
jurisdiction.
4.2 Russian legislation on invasive alien species
4.2.1 Federal legislation
This subsection, first, provides information on Russian legislation concerning IAS problem
combining with legal norms and policy documents concerning biodiversity protection and
climate change, wrapping up by the observation of other regulation, which provides tools
for prevention of introduction of IAS and could be used for combat with the IAS.
Overarching holistic legal document towards the issue on the federal level is absent and
regulation is quite fragmented. Notwithstanding, legal acts and program documents provides
tools and instruments towards the problem.
116 Regnum: Арктическая зона Российской Федерации (the Arctic Zone of the Russian Federation).
41
Some acts address IAS directly even using this term (in Russian – “инвазивные
чужеродные виды”, “invasivnye chuzherodnye vidy”). The Fundamentals of state policy in
the field of environmental development of the Russian Federation for the period until 2030
approved by the President of the Russian Federation, 30 April 2012117 is one of the examples
of direct mentioning of IAS. According to its para. 16 (d)118, prevention of uncontrolled
distribution IAS of animals, plants, and microorganisms on the territory of the Russian
Federation – is one of the mechanisms to cope with the task of nature conservation includ ing
ecosystems. Solving of problems of North and Arctic are also mentioned in this document
as one of such mechanisms (para. 16 (f)119.
Order of the Government of the Russian Federation 18 December 2012 # 2423-r approved
Action Plan for the implementation of the Fundamentals of state policy in the field of
environmental development of the Russian Federation for the period until 2030120. Ministry
of Agriculture, Rosleshoz (Federal Agency on Forestry), executive agencies of the subjects
of the Russian Federation and the Russian Academy of Science are responsible executors
for the provisions of the Action Plan concerning monitoring of IAS (para. 35).
Prevention of uncontrolled distribution of IAS on the territory of the Russian Federation and
elimination of consequences of such proliferation is one of the measures for in situ
conservation of population under the Strategy for the Conservation of Rare and Endangered
Species of Animals, Plants and Mushrooms approved by the Order of the Ministry of Natural
Resources of the Russian Federation 06 April 2004 # 323 (section 3.4121).
Comprehensive System of Statistical Indicators of Environmental Protection in the Russian
Federation, taking into account international recommendations approved by the Order of
Rosstat (Federal Service of state statistics) of 14.11.2017 # 754 (the Comprehensive
117 The document has not been published.
[http://www.consultant.ru/cons/cgi/online.cgi?req=doc&ts=1860309640046961918617210696&cacheid=51
BE7DBE0C484B1872661F92017B2379&mode=splus&base=LAW&n=129117&rnd=0.4082553273822651
#010092534245016582] (15.02.2014). 118 In numeration according to the Russian alphabet – 16 (г). 119 In numeration according to the Russian alphabet – 16 (e). 120 Sobranie zakonodatelstva RF. 2012. 24 December. # 52. st. 7561. 121 The document has not been published.
[http://www.consultant.ru/cons/cgi/online.cgi?req=doc&ts=1860309640046961918617210696&cacheid=51
BE7DBE0C484B1872661F92017B2379&mode=splus&base=LAW&n=99311&rnd=0.4082553273822651#
08593287340435475] (15.02.2018).
42
System)122 is another example of directly mentioned IAS. Under the Comprehensive System,
IAS is one of the indicators of environmental protection.
According to the Comprehensive System, Rosstat combines information on the environment
in Russia from official sources following different criteria including climate change, air
pollution and ozone depletion, biodiversity and others. Para. 4.17 of the Comprehensive
System defines IAS as one of the indicators for biodiversity. Rosselkhoznadzor (Federal
Service for Veterinary and Phytosanitary Surveillance) and Rosleshoz are the authorit ies,
which provide an official information on IAS (para. 4.17).
Other documents clarify powers, obligations, and interconnection of these authorit ies
concerning IAS. Thus, Rosleshoz annually submits to Rosselkhoznadzor data on the
detection of invasive and quarantine species of pests identified by the results of state forest
pathological monitoring (section 11 of Regulations on the implementation of pest risk
analysis approved by the Decree of the Government of the Russian Federation, 10 August
2016, # 770123). The organization of phytosanitary control (quarantine) of forests includin g
assessment of risks of distribution of invasive species is also one of the component of the
Strategy for development of the forestry complex of the Russian Federation for the period
until 2020, approved by the Order of the Ministry of Industry and Trade of the Russian
Federation # 248 and the Ministry of Agriculture of the Russian Federation # 482, 31 October
2008 (para. 6.4.4.)124.
These were the provisions of documents where IAS are directly mentioned. Mainly these
documents are the policy documents approved by the President, the Government, and
executive bodies (strategies, action plans, orders) concerning the necessity for monitor ing
and implementing prevention measures towards IAS issues.
This section further outlines laws concerning different aspects of the problem of biodivers ity
protection from IAS in Russia. Federal Law on the protection of the environment, 10 January
122 The document has not been published. [http://www.garant.ru/products/ipo/prime/doc/71709518/]
(15.02.2018). 123 Sobranie zakonodatelstva RF. 2016. 15 August. # 33. st. 5194. 124 The document has not been published.
[http://www.consultant.ru/cons/cgi/online.cgi?req=doc&ts=1860309640046961918617210696&cacheid=51
BE7DBE0C484B1872661F92017B2379&mode=splus&base=LAW&n=99108&rnd=0.4082553273822651#
0006978445722725879] (15.02.2018).
43
2002 # 7-FZ125while does not mention IAS directly remains the main legislative act on the
environment. Further development of Russian environmental law should be by amending
the provision of this Law or acts established under its umbrella. In its preamble, Federal Law
on the protection of the environment recognizes biodiversity protection as part of state
environmental policy. Art. 3 of the Federal Law identify biodiversity protection also as one
of the principles of Russian environmental law. Art. 2 (1) of the Federal Law confirms that
system of Russian environmental norms consists of the provisions of the Constitution of the
Russian Federation, the provisions of this Federal Law, other Federal Laws and normative
acts of Russia and the subjects of the Russian Federation. The analyzing Federal Law also
introduces such mechanisms towards environmental protection as state monitoring of the
environment and control embedding prevention, detection, and suppression of
environmental offences.
Federal Law on the animal world, 24 April 1995, # 52-FZ126 in its preamble identifies animal
world as a part of the biodiversity of the Earth and renewable natural resource. The Federal
Law also defines the animal world as a unity of animals in the conditions of their natural
freedom, which permanently or temporally inhabit the territory of Russia (Art.1). In light of
IAS issue, Art. 25 of the Federal Law is critical. Its provisions require receiving permissions
of specially authorized state bodies of the Russian Federation, a conclusion of competent
scientific organizations considering environmental safety for following actions: 1)
acclimatization in Russia fauna objects with are new for Russia; 2) relocation of fauna
objects to new habitats; 3) hybridization of fauna objects.
Administrative Regulations of the Federal Service for Supervision in the Sphere of Nature
Management (Rosprirodnadzor) on the provision of a state service for issuing permits for
the relocation of fauna to new habitats, approved by the Order of the Ministry of Natural
Resources of Russia, 21 March 2012 # 70127 is a document establishing the procedure for
issuing the permits. According to its provisions (section 12), negation scientific conclusion
is one of the bases for refusal of authorization for relocation. Art. 50 of Federal Law on
hunting and on the conservation of hunting resources and on amending certain legisla t ive
125 Sobranie zakonodatelstva RF. 2002. 14 January. # 2. st. 133. 126 Sobranie zakonodatelstva RF. 1995. 24 April. # 17. st. 1462. 127 Rossijskaya Gazeta. 2012. 31 October. # 251.
44
acts of the Russian Federation, 24 July 2009, # 209-FZ128 also requires scientif ic
recommendations for a relocation of hunting resources into the new environment.
The breach of rules on relocation species leads to administrative penalties – fine of 1 000 –
1500 rubles for persons (approximately 15-20 euros129) or 20 000 – 30 000 rubles for
companies (approximately 300 – 400 euros), Art. 8.36 of the Code of the Russian Federation
on Administrative Offences (CAO), 30 January 2001, # 195-FZ130. Thus, norms of the
Russian legislation provide legislative tools for prevention of release and spread of IAS
during interterritorial relocation of species, connecting scientific communities and
authorities in decision-making and establishing penalties for breaching the rules, while the
issues of scope (hunting), effectiveness of measures and sufficiency of penalties for
prevention of offences could be debatable.
State authorities also conduct measures for nature conservation and protection of the
environment on border control (Law on the state border, 01 April 1993, # 4730-1131). Federal
Law on quarantine of plants, 21 July 2014, # 206-FZ132 one of the purposes of which is the
protection of territory of Russia from introduction and propagation of quarantine species
establishes comprehensive measures including measures on the importation of species into
Russia.
Under the Federal Law on quarantine of plants Rosselkhoznadzor established the lists of
three groups of species (each group is also subdivided into parts combining plants, animals,
fungus and other species): 1) quarantine objects which are harmful organisms not existing
in Russia (for example, Азиатская хлопковая совка (Spodoptera litura Fabr.), 2) quarantine
objects which are harmful organisms of limited distribution in Russia (for example,
Амброзия многолетняя (Ambrosia psilostachya DC.), 3) non-quarantine objects which are
regulated harmful organisms (Бактериальная пятнистость листьев косточковых
(Xanthomonas arboricola pv. Pruni (Smith) Vauterin et al.), Order of the Ministry of
128 Rossijskaya Gazeta. 2009. 28 July. # 137. 129 Here and further in calculation 70 rubles are equal to 1 euro. 130 Rossijskaya Gazeta. 2001. 31 December. # 256. 131 Rossijskaya Gazeta. 1993. 4 May. # 84. 132 Rossijskaya Gazeta. 2014. 23 July. # 163.
45
Agriculture of Russia on approval of the List of quarantine objects, 15 December 2014, #
501133.
Concerning quarantine regime, it is also should be mentioned that the Council of the
Eurasian Economic Commission approved a single list of quarantine objects of the Eurasian
Economic Union (Decision, 30 November 2016 # 158134, Russia is a party of the Union).
Breach of rules on the struggle against quarantine species, other hazardous for plants species
and pests constitutes an offence (fine – 300-500 rubles (approximately 4-7 euros) for persons
and 5 000 – 10 000 rubles (approximately 70-140 euros) for companies (Art. 10.1 of the
CAO of the Russian Federation). Notwithstanding, if a breach of such rules entailed serious
consequences this constitutes a crime with penalties up to 120 000 rubles (approximate ly
1 700 euros) of fine or fine in an amount which is equal to the annual income of the
perpetrator, or restriction of freedom up to two years (Art. 249 of the Criminal code of the
Russian Federation, 13 June 1993, # 63-FZ135).
Thus, while Russia does not have a single law on IAS, the protection of biodiversity from
IAS is recognized as a priority in such documents as the Fundamentals of state policy in the
field of environmental development of the Russian Federation for the period until 2030
approved by the President of the Russian Federation and other documents approved by the
Government and authorities of executive branch of power.
The legislation as such provides tools which also applicable for combating against IAS. They
are the norms of legislation on the protection of the environment, animal world, border
control and quarantine of plants. Sanctions of the CAO of the Russian Federation and the
Criminal Code protect the substantive provisions of the mentioned legislation. Amendments
and interpretation of existing legislation could be used as a part of legal development
concerning biodiversity protection from IAS in Russia, while creation of overarching
normative act on IAS is a welcome development. A quite centralized system of Russian
federalism makes it real to establish federal policy and law on protection of the environment
133 Rossijskaya Gazeta. 2015. 23 January. # 12/1. 134 https://docs.eaeunion.org/docs/ru-ru/01413202/cncd_06032017_158 (16.02.2017). 135 Sobranie zakonodatelstva RF. 1996. 17 June. # 25. st. 2954.
46
and biodiversity as its part, which should be considered in the development of the legal
framework.
Next subsection will assess legislation of the subjects of the Russian Federation concerning
IAS and the role of the subjects concerning the issue.
4.2.2 Legislation of the subjects of the Russian Federation
Previously this chapter pointed out that Russia can establish federal environmental policy,
but environmental legislation is a realm where Russia and its subjects enjoy joint
jurisdiction, which means that subjects establish their own regulation under the federal one.
Considering IAS problem regulation of subjects of Russia can be divided in following groups
which will be consequently observed further: 1) regulation for implementation of the
Fundamentals of state policy in the field of environmental development of the Russian
Federation for the period until 2030; 2) other strategies, action plans and programs of the
subjects; 3) subjects’ legislation on forests; 4) other regional documents concerning IAS
problem. Local (municipal) acts considering the biodiversity protection from IAS will wrap
up this subsection.
Some subjects establish their own acts for implementation of a federal document – the
Fundamentals of state policy in the field of environmental development of the Russian
Federation for the period until 2030, which recognize prevention of uncontrolled distribution
of IAS as one of the mechanisms to cope with the task of nature conservation. Among these
subjects are Republic of Buryatia, Republic of Mari El, Chuvash Republic, Kursk Region,
Tambov Region, Tula Region, and Khanty-Mansi Autonomous Area – Yugra.
Thus, para. 4.6 the Action Plan of the Republic of Buryatia for the implementation of the
Fundamentals of State Policy in the Field of Ecological Development of the Russian
Federation for the period up to 2030 approved by of the Order of the Government of the
Republic of Buryatia, 28 October 2013 # 706-r136 enshrines that operational detection of
invasive species in forests of the Republic implements by agreement and in coordination
with branch of the Federal budgetary institution “Rosleszashita” “Forest Protection Center
136 Sobranie zakonodatelstva RB. 2013. # 11 (176). Part II.
47
of the Republic of Buryatia”. The Review of this organization for 2012-2013 points out that
despite existence of pests in forests of the Republic they are not IAS137.
Strategies and regional concepts are the other types of documents of the subjects. Sections
3.1.4 and 5.2.8 of the Strategy for the conservation of biological diversity in the Sakhalin
Region for the period up to 2025 approved by the Decree # 263 of the Government of the
Sakhalin Region, 07 June 2017138, considering insular specific of Sakhalin ecosystems
highlight the problem of IAS for the region especially the problem of aquatic IAS. The
Strategy describes ballast waters from oil tankers and gas carriers as a main source of IAS.
The sections of the Strategy mentioned above point to the need for inventory and monitor ing
of IAS, control of ballast waters, assessment of the impact of IAS on local biodiversity and
ecosystems. The future results of the implementation of this Strategy are critical for the
development of regional legislation concerning IAS in particular for the regions of the Arctic
zone considering ballast waters risks.
The other examples of regional strategies and concepts considering IAS problem are the
Order of the Government of the Khabarovsk Territory, 31 December 2013, # 978-rp on the
implementation of the Strategy for Ecological Safety of Khabarovsk Territory for the period
until 2020 approved by the decree of the Government of the Khabarovsk Territory, 11
December 2010, # 758-rp139 and the Kabardino-Balkar Republic’s Security Concept for
2013-2015 approved by the Order of the Head of the Kabardino-Balkar Republic # 128-RG,
24 December 2012140. The former requires the establishment of regional IAS monitoring
system in forests no later than 2030 (para. 35) and the latter recognizes IAS as an external
threat for the Republic and requires enhancing of international cooperation of the Republic
to cope with the problem (para. 29, 39).
Programs are another type of regional documents concerning IAS problem. The specific ity
of the programs is the accumulation of money from different sources (federal, regional, local,
and non-budgetary finance) for the realization of measures established under the program.
137 Branch of the Federal budgetary institution “Rosleszashita” “Forest Protection Center of the Republ ic of
Buryatia”: Review of sanitary and pathological status of forests of the Republic of Buryatia for 2012 and
prediction of pathological situation for 2013. 138 Gubernskie vedomosti. 2017. 28 July. # 134 (5262). 139 The document has not been published. [https://www.lawmix.ru/zakonodatelstvo/2373880] (17.02.2018). 140 Offitsialnaya Kabardino-Balkariya. 2013. 11 January. # 1.
48
Such subjects as Altai Territory, Kemerovo Region, Ulyanovsk Region, Yaroslavl Region
established the programs. The Program of the Altai Territory in its provisions concerning
general outline of the Program highlights the increasing activity of new invasive species –
polighraph ussurijskij (полиграф уссурийский) in local forests and note to an absence of
developed methods and tools for struggling against them (the State program of the Altai
Territory on environmental protection, reproduction and rational use of natural resources,
development of forestry in the Altai Territory for 2015 – 2020 approved by the Resolution
of the Administration of the Altai Territory, 23 October 2014 # 494 (section 4 of part 1141).
Protection of forests forms another part of the legislation of the subjects of the Russian
Federation. Forest legislation concerning IAS problem exists in following subjects: Republic
of Buryatia, Altai Territory, Krasnodar Territory, Kemerovo Region, Nizhny Novgorod
Region, Novosibirsk Region, Tyumen Region, Khanty-Mansi Autonomous Area – Yugra.
The Forest Plan of the Kemerovo Region approved by the Resolution of the Governor of the
Kemerovo Region, 28 January 2009 # 6-pg recognizes polighraph ussurijskij (полиграф
уссурийский) which was already mentioned above among IAS causing significant harm to
the Kemerovo forests (table 42)142.
The other forms of legal response towards IAS problem in the subjects of the Russian
Federation include: deputy requests for an action concerning IAS (Decree of the Legisla t ive
Assembly of the Krasnodar Territory on the deputy requests for an action…, 22 October
2014, # 1293-P143), rules on usage of pesticides on protected territories allowing
implementation of technologies with pesticides to control IAS (section 10.1 of the Decree of
the Government of the Nizhny Novgorod Region on the reorganization of specially protected
natural areas, 16 September 2013, # 651144), rules of hunting establishing that introduction
of new species negatively impacts on ecosystems that is why some areas (in the example –
the whole territory of the Sverdlovsk Region) should be free from human introducing new
species (chapter 22 of the Decree of the Governor of the Sverdlovsk Region on the approval
141 The document has not been published.
[http://www.consultant.ru/regbase/cgi/online.cgi?req=doc&cacheid=685AA0D4DF87659B69A6E9789D655
8CF&BASENODE=23568&base=RLAW016&n=71942&rnd=0.22883639871449102#08094956587883029
] (17.02.2018). 142 Information bulletin of the Board of Administration of the Kemerovo Region. 2009. # 2. Parts I, II. 143 Information bulletin of the Legislative Assembly of the Krasnodar Territory. 2014. 7 November. # 23. 144 Pravovaya sreda. 2013. 4 October. # 115, 116 (1671, 1672).
49
of the scheme for the allocation, use and protection of hunting areas in the Sverdlovsk
Region, 15 April 2015, # 180-UG145).
Legal frameworks on IAS in subjects of the Russian Federation among plans, strategies,
programs, and restricting rules also contain incentives. Thus, some subjects of the Russian
Federation stimulate research conducting on IAS problem (Decree of the Administration of
the Altai Territory on the approval of the list of directions and topics of scientific research
for 2016, 28 April, 2016 # 149146), other subjects introduce absence of IAS and protection
of biodiversity as criteria for municipalities to participate in a competition for the best village
(Decree of the Government of the Ulyanovsk Region on holding the annual regional contest
for the most beautiful village of the Ulyanovsk Region among rural settlements of the
Ulyanovsk Region, 08 September 2015, # 445-P147).
To wrap the section on regional legislation in Russia up the section will provide some
examples from local level of regulation. Some municipalities launch municipal programs for
control of IAS (Decree of the Administration of the municipality – Kornevskoe rural
settlement of Skopinsky municipal district of the Ryazan Region on approval of the
municipal target program on struggle against the hogweed Sosnovsky in the municipality –
Kornevskoe rural settlement of Skopinsky municipal district of the Ryazan Region for 2012,
17 October 2011, # 33148), the others use an absence of invasive plants as a criteria in
competitions among territories (the Regulations on the District Competition for the
Improvement of Territories of Municipalities of the Tyumen Municipal District approved by
the Resolution of the Administration of the Tyumen Municipal District, 26 April 2017, # 32,
section 4.1.3, Annex II149).
In this way, Russian legislation towards IAS problem reflects general features of Russian
federalism concerning environmental issues. Federal level establishes environmental policy
documents, which are binding for the whole territory of Russia. Environmental law is a realm
of the joint jurisdiction of Russia and her subjects which means that despite mandatory
145 Sobranie zakonodatelstva Sverdlovskoj oblasti. 2015. 15 July. # 4-4 – 4-8. st. 616. 146 The document has not been published. [http://docs.cntd.ru/document/438885959] (17.02.2018). 147 Ulyanovskaya Pravda. 2015. 10 September. # 126 (23.767). 148 Information bulletin of Kornevskoe rural settlement of Skopinsky municipal district . 2011. 17 October. #
55. 149 Krasnoje znamya. 2017. 28 April. # 34.
50
character of federal regulation for the whole territory of the country the subjects can create
their own rules reflecting their specificity. Thus, while mainly subjects establish their plans
of action or other documents for implementation of federal norms, some of them also go
further and establish documents concerning local specificity towards the issue as ballast
water control in Sakhalin or prohibition of human-made introduction of new animals into
territories of the subject as in case of the Sverdlovsk Region. Subjects of the Russian
Federation use not only command and control approach but also incentives and nudges
addressing IAS problem (as in case of an absence of IAS in the area as a requirement for
participation in local competitions among municipalities).
On the one hand, further legal development concerning biodiversity protection from IAS in
Russia should consider a high-centralized system of Russian federalism and possibility for
launching regulation binding for the whole territory from federal center. On the other hand,
this development should take into account possibility of subjects of the Russian Federation
to create their own regulatory frameworks under federal one combining reflection of
specificity of the regions with different modes of regulation including both command and
control and incentives. Next section observes legislation relevant to biodiversity protection
from IAS at the Arctic zone of Russia.
4.3 Arctic-specific Russian legislation relevant to the protection of Arctic ecosystems
from invasive alien species
Section 4.2 has shown that despite the existence of different legal norms to some extent
relevant to IAS issues there is no unified single act reflecting a general legal attitude towards
the problem. The same is true concerning the Arctic-specific legislation on protection of the
Arctic ecosystems from IAS. That is why the focus of this section is on different pieces of
Russian Arctic-specific law, which is somehow used or could be used for protection of
biodiversity of the Arctic. The general federal legislation is applicable as well.
First, the section will provide an information on the legal approach of Russia towards the
Arctic, combining with an observation of main aspects of Russia’s policy in the Arctic and
positions of legal science on the development of Russian Arctic-specific environmental law.
Then, the section will observe legislation of the subjects of the Russian Federation located
in the Arctic zone relevant to the topic wrapping up by the general conclusion.
51
The beginning of XXI century has shown increasing interest of Russia in the Arctic which
is reflected in documents on development in the area. Main of them are: 1) the Fundamenta ls
of the state policy of the Russian Federation in the Arctic for the period until 2020 and
beyond approved by the President of the Russian Federation, 18 September 2008, # Pr-1969
(the Fundamentals of the Arctic policy)150; 2) the Strategy for the development of the Arctic
zone of the Russian Federation and ensuring national security for the period until 2020
approved by the President of the Russian Federation (the Strategy for the Arctic
development)151; 3) the State program of the Russian Federation on socio-economic
development of the Arctic zone of the Russian Federation approved by the Decree of the
Government of the Russian Federation, 21 April 2014 # 366 (the State program on the Arctic
zone)152; 4) the Regulations on the State Commission for the Development of the Arctic
approved by the Decree of the Government of the Russian Federation, 14 March 2015 # 228
(the Regulations on the Commission)153.
Despite no one of these documents mention IAS directly they concern environmenta l
regulation in the Arctic. Thus, the Fundamentals of the Arctic policy recognize the fragility
of the Arctic ecosystems as a feature to be integrated into Arctic policy (para. 3 (d)154,
identify protection of the Arctic ecosystems as the national interest (para. 4 (c)155, and set a
task to protect the Arctic biodiversity by enlarging specially protected areas and to protect
ecosystems considering development and climate change (para. 8 (c)156. The Strategy for the
Arctic development reflects the same concepts clarifying that specially protected areas could
be of federal or regional importance and establishes the necessity to conduct environmenta l
monitoring and enhance a control (para. 16 a). The Commission established for coordination
of activities of different stakeholders in the Arctic (para. 1 of the Regulations on the
150 The document has not been published.
[http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=LAW&n=119442&rnd=9CD0191B57691AF6
A11F8FDBE26F7135#032469207273451095] (18.02.2018). 151 The document has not been published.
[http://www.consultant.ru/cons/cgi/online.cgi?req=doc&ts=16476177110020652592486469445&cacheid=79
856B30714F6B607A4B6D4D4CF0D80E&mode=splus&base=LAW&n=142561&rnd=4B369EB9396F90F3
D8ADCBA0A13784C6#020162618426994128] (18.02.2018). 152 Sobranie zakonodatelstva RF. 2014. 5 May. # 18 (part IV). st. 2207. 153 Sobranie zakonodatelstva RF. 2015. 30 March. # 13. st. 1928. 154 In numeration according to the Russian alphabet – 3 (г). 155 In numeration according to the Russian alphabet – 4 (в). 156 In numeration according to the Russian alphabet – 8 (в).
52
Commission) should also implement new regulation for environmental protection during
economic and other activities in the Arctic (para. 5 (f)157 of the Regulations).
These provisions could be a base for future legal development concerning IAS problem.
Notwithstanding, features of Russian Arctic policy and critical approach of researchers
towards existing Arctic environmental law requires to make some remarks. Thus, as K. Zysk
claims the ambitious plans of Russian authorities towards the Arctic and establishing
deadlines usually delay because of political tensions after Ukrainian crisis, lack of
technological and other capacities, discoordination of attitudes of different stakeholders
involved and different policies (traditional national defense and development, to name but a
few)158. She also believes that despite these features the Arctic will remain in focus of
Russian policy combining intention of the country to maintain its status as a leading Arctic
power with Arctic energy resources exploitation and considering the Northern Sea Route159.
Russian environmental law researchers E. Gladun and N.I. Khludeneva point out that Russia
needs coherent approach towards Arctic law and policy including Arctic environmenta l
law160. They believe that the special law (special legal regime) on the Arctic ecosystems is
a welcome development161. It should contain concrete mechanisms, enhance the role of the
science in development planning, consider the specificity of the Arctic territories, combat
with the weakness of enforcement, and introduce a system of environmental management162.
Probably, it is also true to say that features mentioned above (such as a lack of concrete
mechanisms and weak enforcement) also relevant to IAS general legislation in Russia
discussed in the previous section. Nevertheless, enforcement of environmental norms is a
problem not only in Russia but also in many countries and probably one of the weakest
features of environmental regulation in general.
The section observes further the legislation of the subjects of the Russian Federation
including in the Arctic zone relevant to the protection of Arctic biodiversity from IAS. As
section 4.3 describes, some subjects of the Russian Federation establish legal documents for
157 In numeration according to the Russian alphabet – 5 (e). 158 Zysk 2015, p. 437-461. 159 Ibid. 160 Gladun Russian Law Journal 2015, p. 92-109; Хлуденева Н.И. Журнал российского права 2015, с. 114-
122 161 Ibid. 162 Ibid.
53
implementation of the Fundamentals of State Policy in the Field of Environmenta l
Development of the Russian Federation including its provisions on IAS. This type of
documents exists in one of the Arctic subjects – the Republic of Sakha (Yakutia). Action
Plan for the Implementation of the Fundamentals of State Policy in the Field of
Environmental Development of the Russian Federation in the Republic of Sakha (Yakutia)
for the Period to 2030 approved by the Ordinance of the President of the Republic of Sakha
(Yakutia), 10 September 2013, # 794-RP163 establishes that the Ministry of Nature
Conservation of the Republic monitors IAS in the forests (para. 12) and with other authorit ies
participate in activities on decreasing and prevention of negative impact on the environment
of the Arctic zone (para. 14).
Some other Arctic subjects of the Russian Federation establish norms concerning IAS in
their forest legislation. Thus, the Forest Plan of the Republic of Karelia approved by the
Order of the Head of the Republic of Karelia, 31 December 2008, # 975-r164 in its table
1.1.8.1 requires assessment of the impact of IAS on biodiversity and establishment of
compensation measures. This Plan defines species as IAS if they appear at the territory not
only because of direct human activity but also as a result of an indirect human activity. The
other subject, which concerns IAS in its forest plan, is the Krasnoyarsk Territory. The Forest
Plan of the Krasnoyarsk Territory approved by the Decree of the Governor of the
Krasnoyarsk Territory, 26 December 2008, # 219-ug165 recognizes insect полиграф
белопихтовый уссурийский (Polygraphus poximus Blandf.) as the main IAS with
significant negative impact on forests. This IAS was first introduced on the areas of the
Krasnoyarsk Territory with wood transported by railway transport in 2009 and already in
2012-2013, it invaded critical areas. A tree dies after three-four years of presence of this IAS
on it. The Forest Plan of the Krasnoyarsk Territory requires not using non-local timber for
some types of usage, logging and cleaning the territories as measures against this IAS (tables
1.2.3.4.5, 1.2.4.3.14, 1.2.4.3.15).
The section has already mentioned proposals of Russian researchers on specially protected
areas as one of the components for protection of the Arctic environment. The Arkhange lsk
Region of the Arctic zone is one of the examples of implementation of such an approach
163 Sokunnar. Uuraahtar. D’yahallar. 2013. 17 September. # 237-239. 164 Sobranie zakonodatelstva RK. 2008. December. # 12. Part II. st. 1545. 165 Vedomosti of the highest state authorities of the Krasnoyarsk Territory. 2008. 25 December. # 70(297)/1.
54
(Law of the Arkhangelsk Region on Specially Protected Natural Territories in the
Arkhangelsk Region, 24 February 2015, # 242-14-OZ166). The problem of IAS requires
cooperation between territories for prevention of invasions. In this context it is critical that
not only Arctic regions, but also other subjects of the Russian Federation establish offic ia l
bodies for coordination of issues concerning the Arctic (as an example – Decree of the
Government of St. Petersburg on Providing Measures in the Interests of Development of the
Arctic Zone of the Russian Federation, 08 February 2018, # 93167).
Thus, Arctic-specific legislation in Russia does not contain specific regime for biodivers ity
protection from IAS. Notwithstanding, strategies, programs, and action plans highlight the
importance of conservation of the Arctic ecosystems. Further work on concretization of these
provisions, enhancing enforcement should be done both on federal and regional levels. The
subjects of the Russian Federation located in the Arctic zone establishes their own regulat ion
and programs toward the issue. Some of them launch measures against IAS as the
Krasnoyarsk Territory do to fight against insects, which are IAS threating local forests. The
development of legislation on specially protected areas and cooperation with non-arctic
territories are welcome development concerning the IAS problem.
4.4 Conclusions
Following features characterize a legal framework on biodiversity protection from IAS in
the Russian Federation:
1. The science in Russia (mainly natural science) and legislation recognize IAS as a
problem, where the science treats proactively towards the issue (creation of “Black
books of IAS”).
2. Legislation towards IAS problem reflects the specificity of Russian federalism
concerning environmental issues. The Russian Constitution confirm the ability of the
Federation to establish state environmental policy for the whole territory of the
country, while environmental legislation as such is a realm of both federal and
regional jurisdictions which means that the subjects of the Russian Federation can
establish their own rules under the federal regulation.
166 Vedomosti of the Arkhangelsk Regional Assembly of Deputies of the Sixth Convocation . 2015. # 14. 167 http://gov.spb.ru/law?hdoc&nd=1300077 (18.02.2018).
55
3. The federal approach towards IAS problem while does not contain united
comprehensive regime for biodiversity protection from IAS is twofold:
3.1. The Fundamentals of state policy in the field of environmental development of
the Russian Federation, action plans, strategies, and programs highlight
biodiversity protection from IAS as one of the main instruments and priorities to
protect the ecosystems.
3.2. Russian Laws (as the Federal Law on the animal world and the Federal Law on
quarantine of plants) contain legal tools to be used towards the IAS problem and
Russian Criminal Code and the CAO establish penalties for breach of such rules.
4. The subjects of the Russian Federation, on the one hand, implements provisions of
the federal policy and, on the other hand, creates their own rules concerning regional
specificity (as, provisions on ballast water monitoring in the legislation of the
Sakhalin Region and norms prohibiting the introduction of IAS for hunting purposes
in the Sverdlovsk Region).
5. The subjects of the Russian Federation use not only command and control approach
but also incentives and nudges, such as stimulating research concerning the topic (the
Altai Territory) and establishing an absence of IAS as a requirement for participat ion
in competitions among municipalities (the Ulyanovsk Region). Local (municipa l)
regulation towards IAS problem also follows this way.
6. While Arctic-specific federal legislation does not contain special regime on IAS in
the Arctic, such legislation highlights the fragility of the Arctic ecosystems as a
feature to be recognized in an attitude towards the Arctic and realize protection of
biodiversity in the Arctic as a priority.
7. The legislation of the subjects of the Russian Federation located in the Arctic zone
also reflects the IAS problem; mainly in the same pattern as non-arctic subjects do
(implementation of federal policy, their own action plans, strategies and norms of
legislation, for example, regional forest legislation). Cooperation with non-arctic
subjects and development of legislation on specially protected areas are welcome
development concerning IAS problem in the Russian Arctic.
8. Development towards holistic comprehensive regime on IAS problem (and IAS in
the Arctic in particular), enhancing enforcement and concretization of general
provisions are main recommendations after the observation of Russian legal
framework on the Arctic biodiversity protection from IAS which should be
56
supplemented by an active and coordinated participation of stakeholders involved
including the scientific community.
57
CHAPTER 5. COMPARISON OF RUSSIAN AND CANADIAN LEGAL
FRAMEWORKS ON INVASIVE ALIEN SPECIES
5.1 General remarks on comparative law analysis
This chapter provides comparative part of the master’s thesis. Section 5.1 draws an attention
to comparative law analysis in general. The next section shows the specifics of comparative
environmental law. Sections 5.3 – 5.5 are devoted to the comparison of Russian and
Canadian legislation relevant to the protection of the Arctic ecosystems from invasive alien
species. The analysis is conducted at three levels: federal, regional (sub-national) and Arctic-
specific legislation. These three sections of the chapter also contain tables on the comparison.
The chapter wraps up by the section 5.6 of general conclusions.
To start with, Russian and Canadian legal systems belong to different types of the systems.
The first one is a civil law system, while the second one belongs to a common law. These
systems identify the sources of law differently: the latter highlights the role of judges in
lawmaking, while the former accept the legislation as a main source of law. Notwithstand ing,
as previous chapters of the master’s thesis shown, the legislation and policy documents of
both countries contain provisions on IAS which makes the comparison of legal frameworks
possible. While law and policy documents on IAS in both countries exist, Canada as
common law country is more open to judicial activism towards the IAS problem.
G. Dannemann claims that comparative law research could be one of two types:
macrocomparison and microcomparison, where the former focuses on comparison of such
blocks of elements as legal systems while the latter cope with concreate problems168.
Following G. Dannemann’s classification this master’s thesis is a microcomparison focusing
on analysis of the legal frameworks of two countries on the same problem. According to
P.H. Glenn, issue-by-issue analysis is one of the key features of comparative law as a process
of cumulation of knowledge169.
M. Graziadei believes that importance of comparative law is based on the statement that in
a real life legal system are strongly connected to each other, influence on development of
168 Dannemann 2006, p. 387. 169 Glenn 2006, p. 439.
58
other systems and contain elements both original and borrowing from other legal orders that
is why acceptance of legal systems as uniform and autonomous systems of rules is
unrealistic170.
Thus, comparison of Russian and Canadian legal frameworks on IAS is a microcomparison
of elements of legal systems of different types (civil law and common law) which is possible
on the reason of existing the legislation and policy documents on the same problem – IAS.
Microcomparison is prominent part of comparative law research conducting on issue-by-
issue bases. The comparison of Russian and Canadian systems also could contain elements
of novelty because both systems are still not central to comparative law realm.
The comparison does not have an aim to find out which legal system is superior towards the
problem concerned171. The evaluation is not a part of comparative analyses as such while it
could be used for better understanding of existing law, further development of legislat ion,
possible call for reforms and for understanding of diversity of responses on the same
problem172. In this term, comparative law provides a new angle to see existing law including
domestic law173.
Comparative law could be of different types such as functional comparative law where the
function of an institution is crucial despite the differences in legal forms, which institut ions
could fit in different countries, comparative legal history, comparative legal cultures and
comparison of legal transplants and receptions174.
The master’s thesis does not have an aim to compare Russian and Canadian legal systems as
such focusing on approaches of comparing countries towards the IAS problem in the Arctic
that is a microcomparison. The chapter then evaluates following elements critical for the
microcomparison: (1) searching for appropriate tertium comparationis, (2) balancing
between differences and similarities and (3) extracting shortcomings and drawbacks of
comparison.
170 Graziadei 2006, p. 474. 171 Jansen 2006, p. 336. 172 Ralf 2006, p. 373. 173 Ibid. 174 Ibid, p. 341.
59
N. Jansen claim that in comparative law comparing elements are similar or different not as
such but towards the third element – tertium comparationis175. Thus, SabT means that
elements a and b are similar towards T, where both a and b are T, T – is their common
property176. Otherwise, DabT means that a and b are different towards T, where one of the
elements (a or b) possess T, while the other does not177. Even if SabT it does not mean that
a is equivalent to b because they can possess T in different degree that is why while the
elements could be similar at the first sight they could be different in more detailed
investigation178. That is why the degree of intensity in possession of T is what matter. The
more detailed formula could be It(a) is differ from It(b)179. While comparing, T also can be
not one elements but many, a range of T: T1…n180. In this context, despite comparison and
its results reflect subjective elements such as values and perspectives of the researcher
towards the issue the more facts are combining in comparison the more objective results will
be achieved181.
In the master’s thesis combining elements are Russian and Canadian law (a and b elements).
They are comparing towards the problem tertium comparationis (T). In our case T is the
problem of finding appropriate norms addressing the protection of the Arctic biodivers ity
from IAS in light of climate change.
In this context, the concept of ideal type is critical182. Concerning the protection of the Arctic
biodiversity from IAS in light of the changing climate the ideal type is the existence in a
country legislation, which is the best, fitted to cope with the problem. While one does not
know which legislation could be an ideal and can accept the possibility of diverse response
to the same problem, the existence of legislation towards IAS in both Russia and Canada is
a starting point for comparison. If one of the countries does not see the IAS as a problem and
does not have any legislation towards IAS the comparison would be problematic. Thus, SabT
in our case is similarity of Russian and Canadian legal frameworks towards the IAS problem.
175 Jansen 2006, p. 310. 176 Ibid. 177 Ibid. 178 Ibid. 179 Ibid, p. 311. 180 Ibid, p. 315. 181 Ibid, p. 312. 182 See: Jansen 2006, p. 334.
60
The presumption of similarities makes comparative law research possible, highlights
universal values and common meaning of the problem, while differences can show features
of national identity, identify possible ways of further development183. The process of finding
a right balance in searching for similarities and differences in the comparative law research
is critical and different stages of research can require either searching for similarities or
differences184.
In other words, in order the comparison could be comprehensive, the master’s thesis will
articulate the similarities and differences of Russian and Canadian legal frameworks towards
the IAS problem at federal and regional level and in the Arctic-specific legislation of these
countries.
One of the directions within functional method of comparative law is instrumentalism, which
highlights that law is an instrument of the society to deal with its problems185.
Instrumentalists are trying to construct by comparison better law, which would fit the needs
of society in a best way possible186. The critics of such a direction point out that under this
paradigm lawyers are becoming activists, accept law as an instrument with overly
progressive functions and share such shortcomings of instrumentalism as naïve faith in
abilities of law and non-recognition of non-legal elements as culture, traditions, economy,
and other factors in such a process of social engineering187.
Thus, comparative law analysis provides an angle for better understanding of legal
frameworks towards the problem without claiming for superiority of one legal system
towards the other. It will be conduct in combination of searching for similarities and
differences at different levels of regulation and in Arctic-specific legislation. The usage of
the results of the comparison is possible only by recognition of the role of law in society and
its limits.
183 See: Jansen 2006, p. 310; Dannemann 2006, p. 387; Ralf 2006, p. 360. 184 See: Dannemann 2006, p. 418. 185 Ralf 2006, p. 351. 186 Ibid. 187 Ibid.
61
5.2 General remarks on comparative environmental law
This section will provide some features of the contemporary comparative environmental law.
These features will be guidelines for further comparison.
The share of comparative environmental law within the realm of comparative law remains
marginalized188. Nevertheless, comparative environmental law draws an attention of
scholars and could be a prominent part of modern science. This Section will generally outline
the main directions of development of comparative environmental law, focusing on
relevance of comparative environmental law research to emerging global environmental law
and climate change law agenda. Finally, the Section links the findings of such an observation
with further comparative analysis in the master’s thesis.
H.v. Asselt in his editorial article of the special issue of “Review of European, Comparative
and International Environmental Law” devoted to comparative environmental law points out
that comparative law analysis could be either traditional as comparison of laws of two
jurisdictions or more innovative189. The latter includes comparison not only national
legislations, but also international law or law of regional organizations, different regimes on
minority groups such as indigenous people190. Comparative environmental law research also
could connect an analysis of national legislations with issues of international environmenta l
law and its effectiveness191. The enquiries on the possible positive impact of comparative
environmental law into emerging global environmental law and climate change law agenda
are prominent, while remaining debatable, for example concerning the necessity to move
into interdisciplinarity methodology192.
E. Morgera believes that comparative law in its nature correlates with ideas of global
environmental law193. Thus, global environmental law as national, sub-national, regional and
international environmental law taken in its unity towards environmental problems
highlights the role of different levels of regulation and actors including professionals and
academics as active participants in finding better solutions for problems of the
188 Morgera Review of European, Comparative and International Environmental Law. 2015, p. 255. 189 Van Asselt Review of European, Comparative and International Environmental Law. 2015, p. 251-253. 190 Ibid, p. 251. 191 Ibid, p. 252. 192 Ibid, p. 253. 193 Morgera Review of European, Comparative and International Environmental Law. 2015, p. 255.
62
environment194. Comparative law crosses the national boarders in finding knowledge and
building bridges between diverse legal systems, which is possible in particular by moving
from microcomparative analysis to universal level195. In this sense, comparative law is
always transnational and has common ground with global environmental law196.
The shift from international law level to national ones in climate change law agenda is one
of the factors, which draws attention towards comparative law according to M. Mehling197.
The researcher claims that while lawyers cannot offer the diversity of solutions towards
climate change challenge their role is not limiting by dispute resolution and justification of
climate policy198. By using their own methodology, lawyers can extract the collective will
of societies, which is expressed in laws as conservative forces of societies199. Within the
wide spectrum of ideas and opinions towards climate change and responses to it, the
extracting of official collective positions of different state organized societies contribute to
knowledge by showing obstacles and innovations expressed in diverse legal world200. The
other pillar of possible contribution of comparative law in climate change science according
to M. Mehling is in the idea that no single jurisdiction has solution for such a wicked problem
as climate change is that is why comparison of different legal systems is crucial201.
While E. Morgera claims for interdisciplinarity of comparative law research202, M. Mehling
warns researchers from doing so. M. Mehling believes that lawyers can be confused by
sophisticated quantitative and qualitative methodology of other disciplines, which will
negatively affect the results, that is why it is better for them to focus on their own analysis
to extract the official will of society expressed in the documents203.
To wrap up this Section, I come to following considerations. This Chapter will continue with
comparison of Russian and Canadian legislation on IAS problem in narrow legal
methodology not crossing the boarders of analysis of official laws and policy documents
194 Ibid, p. 256. 195 Ibid, p. 258, 262. 196 Ibid, p. 258. 197 Mehling Review of European, Comparative and International Environmental Law. 2015, p. 344. 198 Ibid, p. 344. 199 Ibid, p. 344. 200 Ibid, p. 341. 201 Ibid, p. 346, 347. 202 Morgera Review of European, Comparative and International Environmental Law. 2015, p. 262. 203 Mehling Review of European, Comparative and International Environmental Law. 2015, p. 348.
63
within the states to extract existing collective will of the comparing societies in their coping
with the problem. However, the final Chapter of the master’s thesis devoting to an
assessment of adequacy of existing legal frameworks, conclusions and recommendations
will move forward and connect the conclusions of this Chapter with relevant provisions of
international law in its broader sense.
5.3 Comparison of federal (national) legal frameworks on invasive alien species in
Russia and Canada
As previous chapters of the master’s thesis have shown both Canada and Russia, have
federal, regional and the Arctic-specific legislation relevant to the problem of the protection
of the Arctic biodiversity from IAS. Table 1 provides a brief overview of federal frameworks
in Russia and Canada towards the IAS problem204.
Russia Canada
Sources
General federal
law on IAS
- -
Federal policy
documents on
IAS
• Fundamentals of state policy in the
field of environmental
development of the Russian
Federation for the period until
2030;
• Action Plan for the
implementation of the
Fundamentals of state policy in the
field of environmental
development of the Russian
Federation for the period until
2030;
• Strategy for the conservation of
plants and endangered species of
animals, plants and mushrooms;
• Comprehensive system of
statistical indicators on
• Canadian biodiversity strategy;
• An invasive alien species
strategy for Canada;
• A Canadian Action Plan to
address the threat of aquatic
invasive alien species.
204 Full names of the acts and the sources of their official publications are in text of Chapters 3, 4 of the master’s
thesis.
64
environmental protection in the
Russian Federation;
• Regulation on the implementation
of pest risk analysis.
Sectoral federal
law relevant to
the IAS problem
• Federal law on the protection of
the environment;
• Federal law on the animal world;
• Federal law on hunting and on
conservation of hunting resources;
• Law on the state border;
• Federal law on quarantine of
species.
• Plant protection act;
• Canada shipping act;
• Health of animal act;
• Fisheries act.
Normative
documents of
federal
authorities for
the
implementation
of sectoral laws
on IAS
• Administrative regulation of the
Rosprirodnadzor on the priorities
of a state service for issuing
permits for the relocation of fauna
to new habitats;
• Order of the Ministry of
Agriculture of Russia on approval
of the list of quarantine objects.
• Aquatic invasive species
regulation.
Table 1. Federal (national) legal frameworks on IAS in Russia and Canada
The comparison of federal frameworks in Russia and Canada provides following conclusions
concerning their similarities:
1. Both countries to some extent concern the IAS problem at their federal level. Federal
level in Canada includes both strategies, plans and programs on IAS, on the one hand,
and quite detailed sectoral legislation on IAS, on the other hand. Russia does not
have a single federal law on IAS but the protection of biodiversity from IAS is
recognized as a priority in policy documents, e.g. in the Fundamentals of state policy
in the field of environmental development of the Russian Federation for the period
until 2030. The Russian federal legislation as such provides tools which applicable
for combating against IAS. They are the norms of legislation on the protection of the
environment, animal world, boarder control and quarantine of plants.
65
2. Both countries do not have comprehensive law on IAS. Comparing countries focus
on IAS problem in their policy documents including federal programs, plans and
strategies, sectoral legislation and acts of federal authorities established for the
implementation of sectoral legislation.
3. Canadian and Russian legislation and policy documents on IAS are fragmented using
different terminology such as “IAS”, “hazardous species”, “pests” and other. Thus,
Canadian Biodiversity Strategy 1995 uses term “harmful alien organisms”, while
other documents follow other terminology. Russian Fundamentals of state policy in
the field of environmental development of the Russian Federation for the period until
2030 uses term IAS (“инвазивные чужеродные виды”, “invasivnye chuzherodnye
vidy”), while other Russian documents name IAS for example as “quarantine
objects” (Order of the Ministry of Agriculture of Russia on approval of the List of
quarantine objects).
4. Both countries use list approach towards IAS. Thus, according to Canadian Fisheries
Act, the Governor in Council empowered to establish a list of aquatic invasive
species and regulations in order to control such species. The Governor in Council
also can establish in regulations ministerial authorization on including and excluding
species in/out of the list. Russian example of the list approach is the Order of the
Ministry of Agriculture of Russia on approval of the List of quarantine objects.
Notwithstanding, following differences are crucial:
1. Russia is more centralised federation than Canada and the Constitution of Russia
allows the federal centre to establish federal policy on the environmental issues,
while environmental legislation is in joint jurisdiction of Russia and its subjects. In
Canada, it is more problematic for federal centre to launch binding environmenta l
initiatives for the whole country because of strong power of provinces in
environmental matters.
2. Despite existing of federal acts on IAS in both countries, in Canada this problem is
addressed in more focusing concentrating way (for example, in the IAS strategy for
Canada), while in Russia federal attention towards the issue is more fragmented.
3. While both countries use list approach towards IAS at federal level, the principles of
establishing the lists are different. Thus, the annex to Canadian Aquatic Invasive
Species Regulations (AISR) includes a list of species subjects to prohibitions and
controls and a list of species subject to controls only in areas where they are not
66
native. Russian List of quarantine objects embeds 1) species which are absent on the
territory of the Russian Federation; 2) species of limited spread on the territory of the
Russian Federation; 3) non-quarantine harmful organisms.
.
5.4 Comparison of regional (sub-national) legal frameworks on invasive alien species
in Russia and Canada
The comparison of regional (sub-national) legal frameworks on IAS in Russia and Canada
(Table 2) points out sub-national entities to some extent focus on the IAS problem and use
variety of legal instruments towards it, which illustrates regional legal diversity concerning
the issue.
Russia Canada
Sources
IAS specific
legislation
- • Invasive Species Act, Ontario;
• Ontario’s Regulation.
Acts of
implementation of
federal policy on
IAS
• Action plan for the
implementation of the State
Policy in the fields of
environmental development of
the Russian Federation for the
period up to 2020, the Republic
of Buryatia.
Not found
Other regional
acts concerning
IAS
• Strategy for the conservation of
biodiversity in the Sakhalin
Region for the period up to
2025;
• State programme of the Altai
Territory on environmental
protection, reproduction,
rational use of natural resources,
development of forestry in the
Altai territory;
• Forest Plan of the Kemerovo
Region;
• Decree of the Governor of the
Sverdlovsk Region on the
approval of the scheme for the
• Fish and wildlife conservation
act, Ontario;
• Forestry act, Ontario;
• Pesticides act, Ontario;
• Provincial parks and
conservation reserves act,
Ontario.
67
allocation, use and protection of
hunting areas in the Sverdlovsk
Region.
Regional
incentives
concerning IAS
(not command and
control method)
• Decree of the Government of the
Ulyanovsk Region on holding
the annual regional contest for
the most beautiful village of the
Ulyanovsk Region among rural
settlements of the Ulyanovsk
Region.
Not found
International
cooperation of
regions
concerning IAS
• The Kabardino-Balkar
Republic’s Security Concept for
2013-2015.
• Lake Champlain basin rapid
response action plan for aquatic
invasive species, Quebec and the
US states Vermont and New
York.
Table 2. Regional (sub-national) legal frameworks on IAS in Russia and Canada
The main similarities of comparing levels of legal frameworks are:
1. Sub-national entities in Russia and Canada to some extent focus on IAS problem.
The range of their attention is wide from general regulation to concreate mechanisms
including sectoral approach (e.g., IAS in forestry sector).
2. Russian and Canadian regions use wide range of legal instruments towards the issue
including laws, regulations, strategies, plans, documents concerning internationa l
cooperation and others, which illustrates legal diversity concerning the issue.
While similarities show that IAS problem has features of universalism and draws attention
of different territories, further analysis leads to the conclusion that intensity of regulation of
Russian and Canadian regions concerning IAS is not the same.
1. Canadian province Ontario has comprehensive legal framework on IAS includ ing
the Invasive Species Act and the Regulations adopted for the implementation of this
act. This framework use list approach and establishes strict penalties for introduction
or other activities with prohibited or restricted species, which are in the list. Russian
subjects do not have such legal frameworks.
2. In Russia, significant number of subjects establish their acts on implementation of
the federal policy on environmental development. While federal policy concerns the
68
IAS problem, the acts of its implementation in the Russian regions also establish
appropriate provisions. Similar acts in Canada have not been found.
3. The other feature which characterise the regulation concerning IAS in the subjects of
the Russian Federation is the including of incentives but not the command-and-
control methods in regulation, for example absence of IAS on the territory as the
requirement for participation in competitions for the title of the best territory in the
region. Similar instruments have not been found in practice of Canadian provinces.
4. While both Russian and Canadian sub-national entities mention internationa l
cooperation as a tool to cope with IAS problem, Canadian province Quebec goes
further and participates in concreate mechanism of international cooperation towards
the problem with the US states Vermont and New York.
Thus, Canadian provinces Ontario and Quebec have quite sophisticated mechanisms towards
the issue including mechanisms of international cooperation and strict sanctions for breaches
the rules. On the other hand, Russian regional regulation reflects federal policy combining
with local specificity and can include incentives instead of command-and-control methods,
which does not exist in legal frameworks of Canadian provinces.
One can explain these differences, on the one hand, by the fact that policy in Ontario and
Quebec is more focusing on IAS problem than policy in other comparing regions and, on the
other hand, by existing more centralized federal system in Russia where subjects relies on
the federal legislator. This system anyway leaves room for regional regulation reflecting
local specificity and problems. The examples of such Russian regions as the Sakhalin Region
and the Ulyanovsk Region to name but a few illustrate an ability of Russian subjects to act
autonomously using original and unique tools for the regulation concerning the IAS problem.
5.5 Comparison of the Arctic-specific legislation relevant to the protection of
ecosystems from invasive alien species in Russia and Canada
Table 3 provides the comparison of the Arctic-specific legislation relevant to the protection
of ecosystems from IAS in Russia and Canada.
Russia Canada
Federal (national) level
69
Sources
IAS Arctic-
specific
legislation
- -
Arctic-specific
legislation
concerning IAS
problem
- -
Arctic-specific
legislation
which is
relevant for
further
development
concerning IAS
problem
• Fundamentals of the state policy
of the Russian Federation in the
Arctic for the period until 2020
and beyond;
• Strategy for the development of
the Arctic zone of the Russian
Federation and ensuring national
security for the period until 2020;
• State program of the Russian
Federation on socio-economic
development of the Arctic zone of
the Russian Federation;
• Regulation on the State
Commission for the Development
of the Arctic.
• Arctic waters pollution
prevention act;
• Arctic waters pollution
prevention regulation;
• Pan-Canadian framework on
clean growth and climate
change.
Regional (sub-national) level
Sources
IAS Arctic-
specific
legislation
- -
Arctic-specific
legislation
concerning IAS
problem
• Action Plan for the
Implementation of the
Fundamentals of State Policy in
the Field of Environmental
Development of the Russian
Federation in the Republic of
Sakha (Yakutia) for the Period to
2030;
• Forest Plan of the Republic of
Karelia;
-
70
• Forest Plan of the Krasnoyarsk
Territory.
Arctic-specific
legislation
which is
relevant for
further
development
concerning IAS
problem
• Law of the Arkhangelsk Region
on Specially Protected Natural
Territories in the Arkhangelsk
Region;
• Decree of the Government of St.
Petersburg on Providing Measures
in the Interests of Development of
the Arctic Zone of the Russian
Federation.
• Act to establish a process for
assessing the environmental and
socio-economic effects of
certain activities in Yukon;
• An Act to provide for an
integrated system of land and
water management in the
Mackenzie Valley, to establish
certain boards for that purpose
and to make consequential
amendments to other Acts;
• An Act respecting land use
planning and the assessment of
ecosystemic and socio-
economic impacts of projects in
the Nunavut Settlement Area
and making consequential
amendments to other Acts.
Table 3. The Arctic-specific legislation relevant to the protection of ecosystems from IAS in Russia
and Canada
Arctic zone is strictly outlined in administrative order in Russia, which does not exist in
Canada following geographical approach. Nevertheless, if one accepts the Arctic as the
territory located North of the Arctic Circle both approaches focus geographically on almost
the same latitude.
The table 3 draws following conclusions concerning the federal level of the Arctic-specific
legislation in comparing countries.
1. Russia and Canada are similar because both countries do not have the Arctic-specific
legislation, which focuses on IAS problem and creates solutions specific for the
region. Nonetheless, the Arctic-specific documents of the countries combining with
general provisions on IAS could be a base for further development concerning the
problem discussed.
71
2. The difference between the countries is in the fact that while Russia mentions
protection of the Arctic ecosystems in their policy documents on the development of
the Arctic zone, Canada has the Arctic-specific environmental legislation as the acts
concerning the Arctic waters pollution prevention and also connects the protection
of Artic biodiversity with climate change in their climate change policy documents.
The similarities of regional levels of the Arctic-specific legislation in Russia and Canada
relevant to IAS problem are in the facts that sub-national entities of Russia and Canada have
not established Arctic-specific legislation concerning IAS problem, while have provisions
which could be used for further development of legislation concerning IAS problem in the
Arctic.
The differences of regional levels of the Arctic-specific legislation in Russia and Canada
relevant to IAS problem are:
1. While Canadian Arctic territories do not have legislation to some degree concerning
IAS problem, some Russian regions including the Republic Sakha (Yakutia), the
Republic of Karelia and the Krasnoyarsk Territory establish such acts. It could be
explained partly by the fact that Federal policy documents concerning environmenta l
development have such provisions and the regions include the provisions in order to
implement federal acts. The other reason is the size of the territories of the regions
(e.g. the Republic Sakha (Yakutia) and the Krasnoyarsk Territory) which are only
partly are the Arctic territories.
2. While Artic regions of both countries have provisions, which could be used for
further development of legislation concerning IAS problem in the Arctic, the nature
of these acts are different: while acts of Canadian territories concerning
environmental impact assessment, Russian acts concerning the other issues.
3. Canadian territories Yukon, Northwest Territories and Nunavut which are located in
the Arctic have status which is different from other Canadian regions which are
provinces, while Arctic sub-national entities in Russia are equal in their status to
other regions of Russia (despite differences in titles).
Thus, according to the Table 3, both comparing countries have not established acts, which
are specifically focusing on the protection of the Arctic biodiversity from IAS. It is true for
both federal (national) and regional (sub-national) levels. Notwithstanding, some acts of the
72
Arctic regions in Russia concern IAS to some extent. Both Russia and Canada have the acts,
which extract the Artic from the other regions of the countries, highlight specificity of its
problems and fragility of the Arctic ecosystems. Combining with general provisions on IAS
these acts could be the basis for further legal development concerning IAS in the Arctic.
5.6 Conclusion
The chapter characterises the comparison in the following way:
1. The chapter conducts the comparison of Russian and Canadian legal frameworks on
biodiversity protection from IAS at federal (national) and regional (sub-nationa l)
levels as well as in respect of the Arctic-specific legislation. The comparison includes
searching for both similarities and differences at every level of regulation.
2. While Russia and Canada are the countries of different legal systems (civil law and
common law), it is not an obstacle for the comparison because the comparison in the
master’s thesis is microcomparison concerning exact problem which is to some
extent regulated in the legislation of both countries. Notwithstanding, the difference
of the role of the legislation and policy documents in the countries should be bared
in mind as well as the possible role of judicial activism in Canada concerning the
issue in future.
3. The comparison has shown that the IAS problem is in focus of the law of the both
countries.
4. Fragmentation is a general characteristic of the approach of the countries towards the
issue, while the intensity of the fragmentation differs.
5. Canada and Russia provide diversity of legal instruments towards the issue. On the
one hand, Canadian province Ontario established Invasive species act with detailed
lists of the species and strict sanctions for the breach of the law. On the other hand,
the Ulyanovsk Region in Russia incentivises territories of the Region to combat with
IAS by establishing an absence of IAS at the territories as a requirement for
participation in competition for the title of the best settlement in the Region.
6. Russia and Canada have not created comprehensive legal frameworks towards
protection of the Arctic biodiversity from IAS in light of climate change.
Nevertheless, both countries have legal instruments of general and the Arctic-specific
character which are possible to use as tools towards the problem.
7. The aim of the comparison was not to identify the superiority of one legal framework
towards the other but to understand better specificity of the frameworks in relation
73
to the IAS problem in the Arctic. Despite this characteristic, the results of the
comparison could be used for proposals to reform and for other modification of the
existing law.
8. The limitation of comparative analysis is partly in the fact that constructing the ideal
type of law concerning the biodiversity protection from IAS is not enough as a
respond to the problem. Evaluation of social, political, economic, cultural, religious,
and other factors is needed which is aside of the master’s thesis.
The next and final Chapter of the paper combines the results of the comparison with the
provisions of the international environmental law on the Arctic biodiversity protection from
IAS for final conclusions and recommendations.
74
CHAPTER 6. ASSESSMENT OF ADEQUACY OF EXISTING LEGAL
FRAMEWORKS, CONCLUSIONS AND RECOMMENDATIONS
BASED ON THE COMPARISON
6.1 Assessment of adequacy of existing legal frameworks and conclusions
According to the introductory part of master’s thesis, the main research question of the thesis
is: to what extent the current legal frameworks in Canada and Russia are adequate for
protecting the Arctic from IAS and how do they compare in terms of scope and approaches?
For answering the main research question the master’s thesis draws three sub-research
questions:
1. What are the general and Arctic-specific legal frameworks on biodiversity protection
from IAS in Russia and Canada?
2. How do Russian and Canadian legal frameworks on IAS compare in terms of scope
and approaches?
3. To what extent the current legal frameworks in Canada and Russia are adequate for
protecting the Arctic from IAS? How can these be strengthened?
While previous chapters answer sub-research questions 1 and 2, this chapter focuses on
answering question 3. Accordingly, the chapter consists of two sections where the first one
concerning the issues of adequacy and conclusions and the second one devoted to the
recommendations.
As the first chapter noted the main international umbrella framework of Canadian and
Russian commitments towards IAS is Article 8(h) of the CBD according to which the
countries shall as possible and as appropriate prevent the introduction of, control or eradicate
those IAS which threaten ecosystems, habitats, and species.
While one can accept different modes of the effectiveness of international environmenta l
regimes including legal effectiveness focusing on compliance, behavioural effectiveness
measuring changes in the behaviour of the actors the most important dimension is problem-
solving effectiveness205. This type of effectiveness points out how the implementation of
205 Bodansky 2010, p. 253.
75
norms under international environmental regime contributes to the solving the
environmental problem on which the regime is constructing206. In terms of problem-solving
effectiveness, the biodiversity regime is outlining as a laggard because the biodiversity loss
is significant and continuing to grow207. The development complementing with habitat loss
and the increasing threat of IAS are among the main drivers of biodiversity loss. In this
context, the protection of the Arctic ecosystems in light of climate change is crucial for the
biodiversity regime.
Nevertheless, according to the Arctic IAS Strategy and Action Plan established under the
Arctic Council, the issue with protecting of the Arctic biodiversity form IAS is unique
because the Arctic ecosystems is not suffering from IAS now at least to the same degree as
the ecosystems of the other regions208. That is why Arctic counties have an opportunity to
construct effective regime for prevention, early detection and rapid response, eradication,
and control of IAS209 which will protect Arctic ecosystems and contribute to umbrella CBD
obligation to protect habitats, species, and ecosystems from IAS.
The CBD, its COP decisions, other international instruments as the Arctic IAS Strategy and
Action Plan are crucial for strengthening the legal frameworks of the comparing Arctic
countries.
The doctrine of the international environmental law states that there is a shift from
constructing new substantive norms at international law to issues of implementation and
enforcement210. In this context, international instruments concerning Art. 8 (h) of the CBD
on biodiversity protection from IAS facilitates implementation of this norm.
D. Bodansky claims that implementation is a process of translation policies into action in
which national actions remain primary211. National actions include not only activities of
states but also of other actors including industries and NGOs212. Notwithstanding, the state-
206 Ibid, p. 256. 207 Ibid, p. 260. 208 Conservation of Arctic Flora and Fauna and Protection of the Arctic Marine Environment: Arctic Invasive
Alien Species Strategy and Action Plan, 2017 (15.04.2018). 209 Ibid. 210 Redgwell 2008, p. 945. 211 Bodansky 2010, p. 205. 212 Ibid, p. 211.
76
driven implementation remains useful simplification213. There is no one explanatory model
of implementation, but through such factors as calculation of self-interests, normative sense,
bureaucratic routine, a pressure of environmentalist groups international instruments affect
national level including its legislation214.
A domestic constitutional order is critical for the implementation215. Horizontal (legislative,
executive and judiciary) and vertical (between a federation and its subjects) division of
powers and other features of policy arrangements form specificity and modes of
implementation unique for every country.
C. Redgwell claims that international environmental instruments will not achieve the same
level of significance at the national level as for example international human rights
instruments216. Nevertheless, there is a room for optimism concerning the issue due to the
fact that national policy discourses, legal frameworks and judicial decision-making change
in that direction217.
While IAS are in the legislation of both countries the development of legislative means
towards the issue remains of primary importance for the states. Notwithstanding, courts
could act as facilitators in the shadows of statues218. This is especially important for Canada
as common law country. Canadian practice concerning their international environmenta l
commitments shows that it was domestic courts who first drew attention to the Canadian
actions under Kyoto Protocol due to claims of local environmental groups219.
Russian implementation of international environmental norms has its own specificity. Thus,
G. Hønneland and A.-K. Jørgensen believe that implementation failure in Russia usually
concerns difficulties in implementation rather than conscious choice not to implement its
environmental commitments220. They believe that for effective implementation of
213 Ibid, p. 211. 214 Ibid, p. 223. 215 Redgwell 2008, p. 925. 216 Ibid, p. 945. 217 Ibid, p. 945. 218 Adelman – Engel 2008, p. 1850. 219 Bodansky 2010, p. 217. 220 Hønneland – Jørgensen 2003, p. 174.
77
international instruments in Russia appreciation of specific of its political culture is crucial
while the role of regional and local levels should not be underestimated221.
The role of international instruments for the strengthening of national environmenta l
legislation is also in their guiding features, providing expert and scientific knowledge to
domestic policymakers222, highlighting the necessity to cooperate with other actors to
achieve results of environmental protection. Current trends of involving non-Arctic states in
activities under the Arctic Council are crucial for the protection of the Arctic223, thus, as it
was mentioned in previous chapters many Arctic problems roots in the regions outside the
Arctic. And through international cooperation states able to include in their domestic
legislation provisions which are relevant and effective for achieving desirable environmenta l
outcomes.
B.J. Preston in the research conducting on the adequacy of a legal framework on justice in
climate change issues draw the question on adequacy as the extent to which evaluat ing
legislation achieving climate change justice224. By analogue with this, the question on the
adequacy of existing Canadian and Russian legislation on the protection of the Arctic
biodiversity from IAS is following: to what extent Canadian and Russian legislation achieve
the goal of protection of the Arctic biodiversity from IAS.
Notwithstanding, while the problem, fortunately, does not exist as a significant one now but
could occur in the future as a result of climate change and increasing human activity in the
region, strict measurement of adequacy of existing legislation is problematic. But during the
identification and comparison of norms concerning the issue, the collective will of Canadian
and Russian societies for coping with the problem had been extracted. It allows to some
extent predict how effective the legislation could be and draw the recommendations for
improving its legal capacity for use as an effective tool in a social response to the emerging
problem.
221 Ibid, p. 182. 222 Redgwell 2008, p. 944. 223 Stokke 66 (4) International Journal. 2011, p. 836. 224 Preston 34 (1) Journal of Energy & Natural Resources Law 2016, p. 45.
78
The Arctic-specific legislation concerning IAS in comparing countries is quite premature
and underdeveloped, that is why general instruments of federal and regional legisla t ion
should be in use.
As one can see from the analysis, both Russia and Canada to some extent focus on the IAS
in their legislation and policy documents. The scope of the comparing documents is mainly
sectoral (marine IAS, quarantine species and so on) while comprehensive regulation also
exists (Ontario IAS Act). Approaches of the countries and their sub-national entities while
having some similarities (list approaches, regulation by policy documents) also differs. Thus,
while Ontario IAS Act contains concreate mechanisms with strict sanctions some Russian
regions prefer incentives (absence of IAS at the territory as a requirement for participat ion
in official competitions in the Ulyanovsk Region).
The comparing legislation is highly fragmented. In Canada, only Ontario has comprehens ive
legal framework concerning IAS while other provinces and territories and the Federation as
such reluctant in establishing the same regulation. Russia mentions IAS in its federa l
environmental development policy, some regions establish their own instruments concerning
the problem but both federal and regional instruments mainly lack concreate mechanisms.
The sectoral approach to the problem in both countries allows authorities and other actors
within sectors conduct activities to maintain the necessary level of ecosystem protection
from IAS, but sectoral fragmentation combining with differences in legal terminology and
regional covering lead to an absence of comprehensiveness towards the issue.
While fragmentation could lead to better specialization in regulation, in my opinion, for more
focusing on IAS problem in the Arctic both countries need not only to enhance existing
regulation but also to adopt comprehensive frameworks reflecting the specificity of the
Arctic region. This framework should contain concreate means of implementation of
principles of international instruments towards biodiversity protection from IAS includ ing
general principles (e.g. precautionary approach), principles of prevention (border control,
quarantine measures, exchange of information, capacity building), principles concerning the
introduction of IAS (both intentional and unintentional introduction), principles of
mitigation (eradication, containment and control). The next section will express more
concreate recommendations.
79
For wrapping up notes on the adequacy of existing legal frameworks, two issues need to be
mentioned: firstly, the broader social context of the existence of IAS regulation, and
secondly, federal structure of legislation in comparing countries.
D. Bodansky discussing the issues of legal effectiveness of international environmenta l
treaty regimes mentions that compliance is, in fact, poor indicator because total compliance
might just be a feature of unambitious regulation, while non-compliance could be not a sign
of the absence of positive effect but a characteristic of more ambitious regulation225. The
same, in my opinion, is appropriate for discussing of the adequacy of legal frameworks :
perfect legal framework and compliance under it does not actually mean that the legisla t ion
is effective in resolving the problem. While issues of legal framing as such is significant,
other factors are also crucial for the protection of the Arctic environment from IAS. Their
reflection in legislation could enhance the regulation.
One more issue to highlight for understanding the level of adequacy and potential of legal
frameworks in Canada and Russia is the role of federalism. D. Bodansky believes that federal
structure of a state is one more aspect to take into account in implementation matters
concerning the issues who is responsible for the implementation and how to implement
international environmental norms226. C. Redgwell claims that necessity to implement
international commitments not necessarily matches with the competence to legislate227. As
one can see from the previous chapters, this is especially true for Canada, where states have
strong jurisdiction over the issues concerning the environment and natural resources and it
is not that easy for the federal authorities to launch common norms of federal environmenta l
policy and regulation applicable for the whole country.
A. Kaswan believes that such complex challenge as climate change and adaptation to it
requires multiscale regulation228. She claims that while local level combines better
knowledge of local practice and specificity it cannot go alone and federal legislation and
control, in this case, is justified229. Nevertheless, in her opinion the priority of further
development should be not in searching for a better level of regulation by policymakers but
225 Bodansky 2010, p. 254. 226 Ibid, p. 210. 227 Redgwell 2008, p. 925. 228 Kaswan 2015, p. 188. 229 Ibid, p. 194.
80
in establishing cooperation, coordination, and mutual control of different levels of federal
regulation230.
These provisions correlate to the debate on static and dynamic models of federalism. The
static model represents so-called matching principle of federalism231. According to the
principle, effective regulation is possible if regulator totally internalizes the costs and
benefits of appropriate actions232. Thus, matching principle requires that the issues of climate
change are relevant for global international level, while the issues of groundwaters are for
local and state regulation233. D.E. Adelman and K.H. Engel believe that this princip le
represents orthodox economists view but environmental problems are multifaced in their
nature, have diverse contexts and that is why require a different model of regulation234. They
claim that matching principle is counterproductive because it increases risks freezing
policies in changing environmental conditions235.
In this context, more flexible, adaptive and dynamic model of federalism following
ecosystem approach is needed. D.E. Adelman and K.H. Engel believe that shift from the
static model representing the matching principle to the dynamic model would enhance
responsibility of authorities, innovations in policies, socioeconomic adaptability, and
resilience in light of unprecedented changes in the environment236.
R.L. Glicksman claims that there is no need to prove which level of regulation is better:
federal (national) or regional (state, sub-national)237. Otherwise, he justifies the existence of
the authority to establish environmental law and policy at both levels238. Among positive
effects of overlapping federal and regional environmental authorit ies are a multiplicity of
forums at which citizens and NGOs could find the official support in their actions towards
better protection of the environment239.
230 Ibid, p. 198. 231 Adelman – Engel 2008, p. 1800. 232 Ibid, p. 1798. 233 Ibid, p. 1798. 234 Ibid, p. 1798. 235 Ibid, p. 1799. 236 Ibid, p. 1849. 237 Glicksman 2006, p. 801. 238 Ibid, p. 801. 239 Ibid, p. 801.
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Following these provisions on environmental federalism and considering previous chapters
of the master’s thesis one can see that both Canada and Russia distribute environmenta l
issues among federal (national) and regional (sub-national) levels allowing both levels to
regulate these issues. Notwithstanding, decentralized Canadian federalism and centralized
Russian model require different approaches in balancing regulation towards the protection
of the Arctic biodiversity from IAS.
The general conclusions on the adequacy of existing legal frameworks of Russia and Canada
for protection of the Arctic ecosystems from IAS are following:
1. The Arctic region does not suffer from IAS now at least not as the other regions do
but can suffer in future due to climate change. The establishing of the adequate legal
framework in combination with other instruments for prevention and resolving the
problem not only contribute to the protection of the region as such but also can
enhance the overall effectiveness of the CBD regime.
2. Due to the future character of the problem the measurement of adequacy of existing
legal framework is problematic.
3. Notwithstanding, existing legislation of comparing countries could be recognized as
fragmented, follows sectoral approach, covers different regions of the countries,
combines different approaches from detailed mechanisms and sanctions to flexibi lity
and incentives.
4. Development of the regulation should include both enhancing of existing
mechanisms and establishing of comprehensive frameworks considering the role of
international instruments in this process and necessity of dynamic development of
environmental federalism in both countries.
5. Development of the legislation should be embedded in overall awareness raising,
enhancing cooperation between different actors within countries, between Arctic
states and regions and with non-Arctic entities including non-Arctic trade partners,
enhancing the cooperative potential of federal structures. Further development
should be aimed at prevention, detection, and rapid response to the problem.
Next section provides recommendations for development of Russian and Canadian legal
frameworks.
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6.2 Recommendations based on the comparison
This section, firstly, outlines general recommendations relevant for both comparing
countries. Secondly, the section provides recommendations for improving Canadian
legislation. And finally, the master’s thesis describes recommendations for Russia.
Common recommendations are following:
1. Development of legislation should be incorporated in broader social changes towards
the issue including awareness raising and other factors. The Arctic IAS Strategy and
Action Plan notes three goals to achieve for better protection of the Arctic from IAS
which could be incorporated into the policy of the Arctic states. These goals are
awareness raising, improving knowledge capacity for decision-making including the
enhancing of the role of the science in the issues and appreciation of local knowledge,
and undertaking prevention, early detection, and rapid response initiatives240.
2. Enhancing and development of existing legislative mechanisms are needed.
According to the Arctic IAS Strategy and Action Plan identifying of pathways of
intentional and unintentional introduction of species and cooperation among Arctic
states and with other states and trading partners outside the Arctic is critical for
ecosystem protection241. Thus, identification of pathways of introduction and
enhancing cooperation are among those measures which would enhance existing
legal instruments.
3. According to the analysis conducted above, while legislation is fragmented the
enhancing of its positive effects including list approach, sectoral, and region-specif ic
regulation is a welcome development.
4. While the problem of protection of the Arctic ecosystems from IAS is a new problem,
which presumably will grow further measurement of the effectiveness of existing
instruments including Ontario and Quebec approaches, the Sakhalin and Ulyanovsk
Regions specificity is needed. This measurement would not only illustrate which
means are more effective for biodiversity protection from IAS but also highlight
which means are better to transplant into the Arctic regions of comparing countries.
5. The establishing of overarching comprehensive legislation should be a guiding line
of development of the legislation. The EU Regulation # 1143/2014 is one of the
240 Ibid, p. 6. 241 Conservation of Arctic Flora and Fauna and Protection of the Arctic Marine Environment: Arctic Invasive
Alien Species Strategy and Action Plan, 2017, p. 7.
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possible models for such a framework. It includes provisions concerning different
pathways of introduction of IAS both intentional and unintentional. The Regulat ion
embeds relevant principles such as precautionary principle, principles of eradication,
containment, and control. It is crucial that this documents also provides an example
of interlinkages between anti-IAS means and WTO obligations and other
international commitments, highlights necessity to avoid overlapping between
different norms concerning the issue. Such provisions of the Regulation # 1143/2014
as the necessity to take into consideration costs of implementation of actions, costs
of inaction, cost-effectiveness and socio-economic impacts also could be useful for
incorporation into new frameworks of Russia and Canada. Considering that both
comparing countries are federations the version of the list approach providing by the
EU Regulation is relevant. According to the Regulation, IAS are subdivided into two
groups: 1) IAS of the Union concern and 2) IAS of member states concern. Russian
and Canadian lists also could be subdivided into 1) IAS of the federal (nationa l)
concern, and 2) IAS of regional (sub-national) concern. The EU Regulation #
1143/2014 establishes that Union level requires monitoring system, centralized
information system, transparency, accountability and providing a scientific forum.
The same is relevant for constructing legislation on IAS of federal (national) concern
in Russia and Canada.
6. Arctic-specific legislation concerning IAS problem should be developed both at
federal (national) and regional (sub-national) levels. According to the literature
review on adaptive environmental federalism, such a development should not focus
on searching for the better level of regulation but on enhancing cooperative features
of federal systems considering constitutional arrangements in comparing countries.
7. In framing a new legislation establishment of the nexus of biodiversity protection
and climate change adaptation is critical. As literature review and analysis of
decisions of bodies under international climate and biodiversity regimes has shown
the searching for such a nexus, overcoming of negative features of fragmentation and
enhancing synergies will improve both resilience ecosystem towards the changing
climate and the protection of biodiversity.
Three main specific recommendation for each of comparing countries based on the literature
review and conducting analysis are following.
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Recommendations for Canada:
1. Enhancing federal (national) legislation would require attempts to establish federal
regulation in particular by using judiciary means of a common law country.
Notwithstanding, enhancing cooperation between provinces and territories for
establishing a wide network of regions connected to the Arctic is needed. Such
federal regulation and cooperation between Canadian regions would enlarge territory
protected from IAS following ecosystem approach.
2. Enhancing regional (sub-national) legislation would require the development of
existing legislation, assessment of possibility for transplanting successful legisla t ion
to other regions and territories.
3. Enhancing the Arctic-specific legislation would require establishing Arctic-specific
legislation at federal (to the extent possible due to constitutional arrangements) and
regional (sub-national) levels. Such legislation needs to incorporate relevant
provisions of international instruments, federal and regional general regulation on
the protection of ecosystems from IAS and reflect the specificity of the Canadian
Arctic.
Recommendations for Russia:
1. Constitutional possibility of establishing federal environmental policy and the fact
that environmental law is in a joint jurisdiction of the federation and the subjects
open an opportunity for establishing a comprehensive legal framework for
biodiversity protection from IAS. The suggestions of R.L. Glicksman concerning
the environmental federalism in other countries are relevant for the Russian
federative system242. The researcher believes that federal authorities could establish
nation’s minimum environmental goals while sub-nation entities would enshrine
their own ways to achieve them243.
2. Enhancing regional (sub-national) legislation would require the development of
implementation of federal policy at regional level and development of regional
legislation on biodiversity protection from IAS.
3. Enhancing the Arctic-specific legislation would require establishing Arctic-specific
federal legislation, establishing and development of existing regional (sub-nationa l)
legislation relevant to the protection of the Arctic biodiversity from IAS. Such
242 Glicksman 2006, p. 801. 243 Ibid.
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legislation needs to incorporate relevant provisions of international instruments,
federal and regional general regulation on the protection of ecosystems from IAS
and reflect the specificity of the Russian Arctic.