The Plight of the Pollinators

Alec Richards

Vol. 42 Associate Editor

Across the world, honeybees are dying out – and no one knows why.  Colony Collapse Disorder, or CCD, occurs when worker bees in a hive unexpectedly disappear or forever leave the hive, leaving their queen and immobile offspring behind to die.[1]  Its causes have yet to be definitively explained, though certain factors such as neonicotinoid pesticides, GMOs, air pollution, habitat degradation, and invasive species have been identified as possible contributors.[2]  With CCD’s global impact and multitude of cross-border causes,  international law (in particular, international environmental and international trade law), presents an attractive and effective means of mitigating this devastating phenomenon. Since honeybees occupy a vital role in ecosystems and economies around the world, CCD has caused naturally no shortage of concern.  In North America alone, pollination is fundamental to the production of over 90 commercial crops, accounts for 15-30% of the average American diet, and contributes an estimated 15-30 billion U.S. dollars to agricultural productivity alone.[3]  Globally, 5-8% of the world’s crop production in 2019 was “directly attributable” to pollinators, a figure valued at anywhere between 235 to 577 billion U.S. dollars.[4] Honey itself is also an important additive or ingredient in many foods such that, in 2016, its world trade generated around seven billion dollars annually.[5]  Honeybees, moreover, indirectly contribute to “countless” industries such as the dairy and beef industries.[6]  Further, honeybees occupy a unique and critical environmental role as keystone pollinators, and maintaining regional-scale biodiversity among different honeybee species is virtually required for sustainable crop production and biodiversity.[7]  CCD, however, can generate losses of up to 40% of beehives,[8] costing up to two billion U.S. dollars in North America alone.[9]  Juxtaposed with a 70% decline in global biodiversity[10] and the current human-driven extinction event, the Anthropocene extinction, honeybees’ pollinating nature becomes all the more important.[11] Clearly, there is a need to triage CCD’s economic and environmental consequences.  The only question is how. There are several possible international-law avenues for effectively mitigating CCD and its widespread impact.  The first could be to push international bodies to implement more stringent or humane trade regulations concerning honey and possible CCD contributors.  Recently, there has already been some progress in this field.  In 2018, the European Union banned outdoor neonicotinoid use, citing environmental concerns,[12] and the World Trade Organization’s General Agreement on Tariffs and Trade (“GATT”) in particular presents an attractive mechanism for such regulation.  Specifically, in keeping with the WTO’s generally free-trade purpose,[13] member states are permitted to adopt environmental policies derogating from the GATT in only two circumstances: when the policies are “necessary to protect human, animal, or plant life or health,” or when the policies relate to “the conservation of exhaustible natural resources.”[14]  The GATT exceptions recognize the state’s fundamental right to control its own natural resources and have already been applied to permit “narrowly focused” regulatory policies aimed at the conservation of tuna, salmon, herring, dolphins, and turtles.[15]  Wild honeybees too, which have been recognized as part of a state’s natural resources since the Roman Empire,[16] could conceivably fall under the auspices of the GATT exceptions. These exceptions, however, only operate to this effect if the member state elects to adopt them;[17] in other words, if a WTO member-state wants to protect its honeybees, it must not only have the sufficient legal acumen and political clout to enact its national regulatory policy and withstand possible (perhaps even inevitable) challenges from other states, but it also must be willing to enact and defend its proposed policy.  Smaller, less-developed states likely have a weaker incentive to use GATT exceptions towards environmentally-conscious ends than developed states, and the GATT exceptions arguably favor developed states who have the luxury of electing to use, say, healthier (and thus more expensive) pesticide alternatives to neonicotinoids.  Indeed, this is noticeably evident in the WTO’s body of environmentally-related jurisprudence under the GATT, which is strikingly predominated by national policies pushed by the United States, Canada, and the EU.[18] A second possible approach to eliminating or mitigating CCD could be regulation through international environmental law (as opposed to international trade law), as there is a rich framework of international environmental regulation that may mitigate CCD and benefit the honeybee.  Further, mandating conservation of natural resources according to certain guidelines would likely be more achievable by definition in this context than through trade-focused legislation.  The 2015 Paris Agreement, for instance, was ratified by 189 member states,[19] and imposed mandatory monitoring and reporting requirements as well as target emission reductions that were in part acceptable because they were tailored to each member’s capacity to meet them.[20]  The same year, the United Nations General Assembly passed a resolution colloquially termed the “2030 Agenda,” which set forth seventeen Sustainable Development Goals (“SDGs”) as well as specific targets for each goal – one of which is to conserve above-ground natural resources.[21]  These goals are monitored by the UN High-Level Political Forum on Sustainable Development, under the UN Economic and Social Council’s purview, and though state parties have thus far largely failed to meet their goals, “around a third of reporting countries are on track to achieving their national biodiversity targets.”[22]  GA resolutions are nonbinding,[23] however, which indicates a greater degree of monitoring or enforcement may be required if true environmental benefits are to follow. There is a clear tension between these two approaches – the first may provide for honeybee-specific regulations at the expense of wide adoption, while the second provides for wide adoption at the expense of specific regulation.  The ideal approach would serve both ends; therefore, it may be productive to reiterate or reaffirm the SDGs through an independent treaty, establishing monitoring and reporting requirements similar to the 2015 Paris Agreement’s, with mandatory targets tailored to each signatories’ capacity to meet them.  As SDG No. 15, the above-ground natural resources provision, is interpreted as protecting habitats, biodiversity, and species generally,[24] affirmative obligations in these areas can help reduce or mitigate CCD’s probable causes, many of which are related to pollutants, invasive species, and habitat loss.[25]  Further, the SDGs, their targets, and the overall 2030 Agenda are already used in state dialogues and supported by treaty bodies charged with upholding and enforcing numerous treaties, such as the UDHR, ICESR, and ICCPR.[26]  The SDGs are also unlikely to be substantively revised or reexamined until 2030, their end date,[27] thus supporting an independent avenue of mitigating CCD if it is to be timely addressed. Unfortunately, this appears as far as our proposal can currently go to address CCD; including honeybee-specific provisions within SDG No. 15 would probably be impossible as this could set off a waterfall of parties attempting to include their own animal of choice.  However, if such a treaty were signed, the plight of the pollinators and any attendant economic and environmental consequences may be mitigated to some extent and, more importantly, provide another example that cooperation among states and international organizations can be used not only for mankind’s benefit, but also for the benefit of the creatures we share this Earth with.

[1]           United Nations Environmental Programme, UNEP Emerging Issues: Global Honey Bee Colony Disorder and Other Threats to Insect Pollinators, at 2 (2010) http://hdl.handle.net/20.500.11822/8544. [2]           Rens Steenhard, Bees under Bombardment: Time for Plan Bee, Peace Palace Library Blog (Apr. 8, 2011) https://www.peacepalacelibrary.nl/2011/04/bees-under-bombardment-time-for-plan-bee/. [3]           Amelia Sadler, Colony Collapse Disorder: The Economics of Decline, Cal. Mgmt. Rev. (Oct. 19, 2016) https://cmr.berkeley.edu/2016/10/colony-collapse-disorder/. [4]           United Nations Environmental Programme, Pollinators and Pesticides: Keeping Our Bees Safe, at 3 (2019) https://wedocs.unep.org/handle/20.500.11822/28214. [5]           Mahsa Shahbandeh, Honey Market Worldwide and in the U.S. – Statistics and Facts, Statista (Aug. 23, 2019) https://www.statista.com/topics/5090/honey-market-worldwide/. [6]           Sadler, supra note 3. [7]           Rob Margetta & Tara Catherine Bracken, Pollinator Biodiversity, Nat’l Sci. Found. (July 5, 2018) https://www.nsf.gov/discoveries/disc_summ.jsp?cntn_id=295868&org=. [8]           Kimberly Amadeo, Colony Collapse Disorder and Its Impact on the Economy, The Balance (Apr. 4, 2020) https://www.thebalance.com/bee-colony-collapse-disorder-facts-and-economic-impact-3305815#:~:text =By%202016%2C%20that%20fee%20increased,%24180%20and%20%24200%20a%20hive.&text=These%20high%20costs%20force%20beekeepers,costs%20on%20as%20higher%20prices. [9]           Fact Sheet: The Economic Challenge Posed by Declining Pollinator Populations, The White House (June 20, 2014) https://obamawhitehouse.archives.gov/the-press-office/2014/06/20/fact-sheet-economic-challenge-posed-declining-pollinator-populations. [10]         Andrea Willege, 75% of Crops Depend on Pollinators – They Must Be Protected, World Econ. F. (Dec. 9, 2019) https://www.weforum.org/agenda/2019/12/protect-pollinators-food-security-biodiversity-agriculture/. [11]         William J. Ripple et al., World Scientists’ Warning to Humanity: A Second Notice, 67 Bioscience 1026, 1026 (Nov. 13, 2017). [12]         Britt E. Erickson, Neonicotinoid pesticides can stay in the US market, EPA says, Chem. & Eng’g News (Feb. 3, 2020) https://cen.acs.org/environment/pesticides/Neonicotinoid-pesticides-stay-US-market/98/web/2020/02. [13]         See World Trade Org., Overview https://www.wto.org/english/thewto_e/whatis_e/wto_dg_stat_e.htm. [14]         World Trade Org., WTO Rules and Environmental Policies: GATT Exceptions https://www.wto. org/english/tratop_e/envir_e/envt_rules_exceptions_e.htm. [15]         Id. [16]         Harry R. Trusler, The Law of Bees, 5 N.C. L. Rev. 46, 46 (1926). [17]         GATT Exceptions, supra note 14. [18]         World Trade Org., Environmental Disputes in GATT/WTO https://www.wto.org/english/trato p_e/envir_e/edis00_e.htm. [19]         United Nations Framework Convention on Climate Change, Paris Agreement – Status of Ratification (last accessed on Oct. 29, 2019) https://unfccc.int/process/the-paris-agreement/status-of-ratification. [20]         John H. Knox & Christina Voigt, Transnational Climate Litigation: The Contribution of the Global South, 114 AJIL Unbound 35, 35 (2020). [21]         G.A. Res. 70/1, 2030 Agenda for Sustainable Development (Sept. 25, 2015). [22]         U.N. Secretary-General, Progress Towards the Sustainable Development Goals, ¶ 129, U.N. Doc. E/2020/57 (Apr. 28, 2020). [23]         Lorne S. Clark, International Law and Natural Resources, 4 Syr. J. Int’l L.  & Com. 377, 380 (1977). [24]         See Sustainable Development Goals, supra note 22 at ¶¶ 123-27. [25]         UNEP Emerging Issues, supra note 1. [26]         Office of the United Nations High Commissioner for Human Rights, Contributions to the 2030 Agenda for Sustainable Development, at 2 and 17 (2016) https://www.ohchr.org/Documents/Issues/MDGs/Post2015/HRTB_Contribution_26May2016.pdf. [27]         United Nations, The Sustainable Development Agenda, Sustainable Dev. Goals (last accessed Nov. 2, 2020) https://www.un.org/sustainabledevelopment/development-agenda/. The views expressed in this post represent the views of the post’s author only.