1.2.3.1 The Constitution

The primary source of law across the MENA region is the constitution as it sets the basic principles and norms that define other legislation enacted by the legislature or the Shura Council. The constitution is the supreme law, and it has binding force on all authorities and persons in a country.Footnote ⁵³ The constitutions of several MENA countries expressly codify provisions on environmental protection and sustainable development.Footnote ⁵⁴ For example, Article 33 of the Permanent Constitution for the State of Qatar declares: “The State shall conserve the environment and its natural balance for the comprehensive and sustainable use of its resources for all generations.”Footnote ⁵⁵ Similarly, Article 9(h) of Bahrain’s Constitution of 2002 provides that “the State shall take the necessary measures for the protection of the environment and the conversation of wildlife.”Footnote ⁵⁶ These constitutional provisions directly incorporate the protection of all aspects of the environment and conservation, from degradation to pollution, and provide strong foundational basis for subsequent policy and legislative action to address biodiversity and nature conservation.

Additionally, given that Islam is the dominant religion in the MENA region, Shari’ah law is constitutionally recognized as the principal source of law in essentially all the countries of the region.Footnote ⁵⁷ For example, Article 1 of Qatar’s 2005 Constitution clearly states that Qatar is “an independent sovereign Arab State. Its religion is Islam, and the Sharia law shall be the principal source of its legislation.”Footnote ⁵⁸ The Constitution of Kuwait states: “The religion of the State is Islam, and the Islamic Shari’a shall be a main source of legislation.”Footnote ⁵⁹ Article 7 of the Constitution of the United Arab Emirates states that “Islam is the official religion of the United Arab Emirates (UAE). The Islamic Shari’a is a main source of legislation in the UAE.”Footnote ⁶⁰

Consequently, the four sources of Shari’ah law – the noble Quran; the Sunnah or teachings of the Prophet Muhammad (peace and blessings be upon him); Ijma or teachings of consensus of various scholars of Islam; and Qiyas or analogical reasoning both deductive and inductive – all provide pivotal foundations for the development and practice of environmental law and policy, as well as biodiversity and nature conservation across the region.Footnote ⁶¹ Islamic environmental philosophy emphasizes the obligations of human beings to safeguard and conserve nature and its resources. The concept of khilafah and amānah (custodianship and trust) derived from the QuranFootnote ⁶² and Sunnah emphasize the role of humans as stewards or trustees of the earth, making it a fundamental duty to protect and preserve nature.Footnote ⁶³ Islamic law also includes many universal guiding principles pertaining to protecting the environment, including the protection of animals and plants, the conservation and sustainable management of land, water, and air, and the protection of the balance of nature and biodiversity.Footnote ⁶⁴

1.2.3.2 Primary Legislation

Key environmental legislation across the region contain general provisions on biodiversity and nature conservation.Footnote ⁶⁵ For example, in Qatar, Article 9 of Law No. 30 on Environmental Protection tasks the competent national authorities to issue regulations and decisions relating to the conservation of wildlife and endangered species, and to prohibit the catching of rare wildlife species. Articles 16–19 of Law No. 4 of 1983 on the Exploitation and Conservation of Living Aquatic Resources in Qatar elaborate on the conservation of aquatic resources and the sustainability standards for fishing and harvesting of living aquatic resources.Footnote ⁶⁶ Law No. 4 of 2002 regulating hunting of wildlife animals, birds, and reptiles prohibits and criminalizes the indiscriminate hunting of wild animals, birds, reptiles, and marine turtles. Article 4 of Qatar’s Law No. 19 of 2004 Conservation of Wildlife and their Natural Habitats specifically outlaws any “acts, transactions, activities or procedures that would dilapidate, destroy, distort or deteriorate the wildlife environment, or affect the richness of the natural reserves.” Prohibited acts include hunting or killing, injuring, or polluting land or sea animals, as well as the dilapidation, transfer, or destruction of natural habitats for flora and fauna. It also prohibits the “construction of buildings or erection establishments, roads, driving vehicles, or the exercise of any agricultural, industrial, pastoral or other activity at the natural reserve.” Additionally, to address the illicit trade in wildlife fauna and flora species, Article 3 of Qatar’s Law No. 5 of 2006 on the Regulation of Trade in Endangered Wildlife Fauna and Flora and their Products expressly prohibits the trade, transit, and shipment of endangered species listed in the appendices to the law.Footnote ⁶⁷ Similar legislation that prohibits trade in wildlife species and indiscriminate hunting can be found in other MENA countries, some of which are extensively discussed in Part II.Footnote ⁶⁸

1.2.3.3 Secondary Legislation

The third main source of domestic biodiversity and nature conservation law and policies flows from the second, comprising a range of detailed regulations, by-laws, national visions and plans, ministerial decisions, and guidelines that are used to flesh out much of the detail of the primary legislation. Ministries or departments overseeing environmental regulation often issue regulations, rules, notices, permits, and guidelines under their enabling statutes. These provide specifics on implementing national strategies, visions, and policies that businesses must comply with. As state legal instruments authorized by legislation, they significantly shape policy and practice. Noncompliance can mean losing business opportunities or penalties, depending on enforcement powers granted.Footnote ⁶⁹

In addition to binding legal provisions, several MENA countries have also put in place declarations, action plans, directives, and national visions that address various aspects of the sustainable management and conservation of biological and cultural resources.Footnote ⁷⁰ Several MENA countries have also released national biodiversity and conservation master plans that set out targets and approaches for accelerating the conservation of biodiversity and natural heritage as part of their implementation of international treaty provisions, such as the CBD, Convention on International Trade in Endangered Species, and the World Heritage Convention.Footnote ⁷¹ For example, Qatar’s National Vision 2030 rests on four key pillars, the fourth of which is to “manage the environment such that there is harmony between economic growth, social development and environmental protection.”Footnote ⁷² Biodiversity and nature conservation is considered vital, especially in the face of its fast-paced development and industrialization and in light of challenges such as increasing groundwater salinity, degrading soil quality, air pollution, climate change, rising sea levels, and biodiversity and species under threat.Footnote ⁷³

1.2.3.4 Judicial Decisions and Scholarly Publications

In the MENA region, the development of biodiversity and conservation laws is influenced not just by primary sources such as constitutions, statutes, and treaties but also by secondary sources such as the judicial decisions of courts and tribunals, as well as the scholarly works of highly qualified jurists.Footnote ⁷⁴ However, contrary to the stare decisis rule applied in the common law system, case law does not constitute a binding source of law in civil law countries,Footnote ⁷⁵ and the decisions of courts, such as the Court of Cassation and Court of Appeal, can be consulted persuasively to guide the court but do not normally bind either themselves or lower courts.Footnote ⁷⁶

The geometric rise of biodiversity litigation in many parts of the world emphasize the potential legal liability and risks that governments and business enterprises may face for failing to integrate biodiversity and nature conservation in development planning processes.Footnote ⁷⁷ As biodiversity and nature conservation laws develop across the region, biodiversity litigation is expected to rise in scale and volume. While international decisions are not binding on MENA courts, they provide persuasive and instructive guidance for resolving such disputes. Furthermore, courts may also consult the commentaries and opinions of highly qualified jurists and scholars, such as law professors, attorneys, and judges, especially in shaping the development of new, emerging, and developing areas of law, such as biodiversity and nature conservation law. These include the reports of international bodies, such as the International Law Commission, the Academic Advisory Group constituted by the International Bar Association’s Section on Energy, Environment, Natural Resources and Infrastructure Law, the academy of environmental law of the IUCN, the International Law Association, and the Association of Environmental Law Lecturers in Middle East and North African Universities, among others, which offer authoritative analyses of a wide variety of issues pertaining to biodiversity and nature conservation.Footnote ⁷⁸

Similarly, a number of nonbinding biodiversity-related documents have been released by eminent scholars and clerics. For example, though not legally binding, the Islamic Declaration on Climate Change of 2015 calls on Muslims worldwide to tackle “the root causes of climate change, environmental degradation and the loss of biodiversity.” It called upon Muslims to work to preserve the environment using Islamic principles such as khalifa (caretaker), which sees human beings as vicegerents of God on earth, responsible for all beings and the environment, and entrusted with nature to benefit society while safeguarding it from overconsumption, highlighting the importance of respecting the environment, and considering the impact of our economic activities on the environment.Footnote ⁷⁹ These nonbinding declarations provide faith-based frameworks and guidance on how governments, national authorities, investors, and other stakeholders across the MENA region can contribute to global biodiversity and nature conservation efforts.

These sources provide a legal foundation for mainstreaming biodiversity and nature conservation into all aspects of development and investment planning across the MENA region. While the codification of specific biodiversity legislation remains in progress in many countries of the region, a wide range of environmental legislation and regulations, including constitutional principles on environmental protection and sustainable development, outlaw practices, including hunting, poaching, and illicit trade, that may deplete or degrade natural and cultural heritage and resources. Furthermore, as discussed in Chapter 4, all MENA countries have designated or established focal ministries, departments, or committees that oversee biodiversity and nature conservation programs, including forest management. The chapters in this book review and evaluate how the plethora of policies, instruments, and scientific studies are shaping responses to biodiversity loss across the region.

2.2.1.1 Convention on International Trade in Endangered Species of Wild Fauna and Flora

The 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) entered into force in 1975.Footnote ²⁸ It regulates international trade in endangered and threatened specimens of wild animals and plants in their natural habitats, currently protecting more than 40,900 species of animals and plants from overexploitation. CITES classifies species into three appendices based on their conservation status. Appendix I includes species that are at the highest risk of extinction. Commercial trade of these species is prohibited. Appendix II includes species that are not currently endangered but could become so without trade restrictions. Trade of these species is allowed but only with a permit from the exporting country and only if the specimens were legally obtained and the trade will not harm the species or its environment. Appendix III includes species for which a country has asked for help from other CITES parties in regulating international trade. Trade of these species is regulated through CITES export permits and certificates of origin. MENA parties to CITES are Algeria, Bahrain, Djibouti, Egypt, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Syria, Tunisia, Turkey, United Arab Emirates, and Yemen.Footnote ²⁹

2.2.1.2 Convention on the Conservation of Migratory Species of Wild Animals

Also known as the Bonn Convention, the 1979 Convention on the Conservation of Migratory Species of Wild Animals (CMS) aims to conserve, and to ensure the sustainable use of, migratory animals and their habitats.Footnote ³⁰ It entered into force in 1983, and covers a wide range of migratory animals and their habitats, which can include wetlands, forests, grasslands, marine areas, and migration routes. Appendix I of the CMS lists migratory species that are in danger of extinction throughout all or a significant portion of their range. Appendix II lists migratory species that have an unfavorable conservation status or would benefit from international cooperation to conserve them. Numerous MENA countries are party to the CMS, namely: Algeria, Bahrain, Djibouti, Egypt, Iran, Iraq, Israel, Jordan, Lebanon, Libya, Morocco, Saudi Arabia, Syria, Tunisia, United Arab Emirates, and Yemen.Footnote ³¹

2.2.1.3 Convention on Wetlands of International Importance Especially as Waterfowl Habitat

The 1971 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention) took effect in 1975 and aims at safeguarding, preserving, and responsibly overseeing wetlands.Footnote ³² It fosters collaboration at both national and international levels to ensure the sustainable utilization of wetlands. It has a broad definition of wetlands, including all “lakes, rivers, aquifers, swamps, marshes, wet grasslands, peatlands, oases, estuaries, deltas, tidal flats, mangroves, other coastal areas, coral reefs, and human-made sites such as fishponds, rice paddies, reservoirs, and salt pans.” The Strategic Plan is the central document directing the Ramsar Convention’s implementation. Among the contracting parties are Algeria, Bahrain, Djibouti, Egypt, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Syria, Tunisia, Turkey, United Arab Emirates, and Yemen.Footnote ³³

2.2.1.4 United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa

The 1994 United Nations Convention to Combat Desertification (UNCCD) took effect in December 1996.Footnote ³⁴ Its objectives, as highlighted in Article 2, are to combat desertification and mitigate the effects of drought, through effective action at all levels, supported by international cooperation and partnership arrangements. This is reinforced by Article 4, which sets out general obligations for contracting parties, requiring them to, among other things, adopt an integrated approach addressing the physical, biological, and socio-economic aspects of desertification and drought, increase strategies for poverty eradication in combating desertification and mitigating drought, and promote cooperation among affected countries, at subregional, regional, and international levels and within relevant intergovernmental organizations. Algeria, Bahrain, Djibouti, Egypt, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Syria, Tunisia, Turkey, United Arab Emirates and Yemen are parties.Footnote ³⁵

2.2.1.5 Convention Concerning the Protection of the World Cultural and Natural Heritage

Adopted in 1972 and effected in 1975, the Convention Concerning the Protection of the World Cultural and Natural Heritage calls on parties to do all they can to ensure the “identification, protection, conservation, presentation and transmission to future generations” of the cultural and natural heritage that is recognized under the convention.Footnote ³⁶ Regarding heritage, the convention requires them to, among other things, take appropriate legal, scientific, technical, administrative, and financial measures necessary for the identification, protection, conservation, presentation, and rehabilitation of this heritage. Notably, the convention establishes the World Heritage Fund to support countries in its implementation. It is administered under UNESCO and enjoys near universal membership with 195 parties, including Algeria, Bahrain, Djibouti, Egypt, Iran, Jordan, Kuwait, Lebanon, Libya Morocco, Qatar, Tunisia, Turkey, United Arab Emirates, and Yemen.Footnote ³⁷

2.2.1.6 Convention on Biological Diversity

In 1992, at the United Nations Conference on Environment and Development in Rio de Janeiro, states adopted the CBD.Footnote ³⁸ The CBD entered into force in 1993 and has since remained the principal framework international law instrument on biodiversity, counting 196 parties, including: Algeria, Bahrain, Djibouti, Egypt, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Palestine, Syria, Tunisia, Turkey, United Arab Emirates, and Yemen.Footnote ³⁹ The CBD begins by recognizing the value, importance, and benefits of biological diversity and expressing the need to protect it. Its preamble encompasses several international and environmental law principles including sovereignty over resources, sustainable development, intergenerational equity, prevention, and the precautionary principles. The preamble also underscores the declining nature of biological diversity and the role of human intervention as an accelerating factor.

Grounded in the preambular context, Article 1 sets outs key objectives as: conservation of biological diversity and the sustainable use of its components; and fair and equitable sharing of the benefits arising out of the utilization of genetic resources. This article embodies the equal importance that the CBD places on its two core themes, that is, conservation and benefits sharing. The CBD is further supplemented by the 2000 Cartagena Protocol,Footnote ⁴⁰ and by the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits.Footnote ⁴¹

2.2.2.1 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean

The 1976 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention) entered into force in 1978.Footnote ⁴² Its objectives include combating pollution, protecting marine ecosystems, and ensuring that their natural marine and coastal resources are sustainably managed.Footnote ⁴³ Article 10 requires contracting parties to take all appropriate measures to protect biological diversity, rare or fragile ecosystems, and, among other things, endangered species and their habitats. Together with its seven protocols, the Barcelona Convention is heralded as the main regional legally binding MEA in the Mediterranean.Footnote ⁴⁴ While the entire framework is relevant, one protocol explicitly addresses biodiversity: the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean, adopted in 1995 and effected in 1999. The protocol creates obligations for parties to, among other things, establish specially protected areas, protect, preserve, and manage threatened and endangered species, cooperate, compile biological diversity inventories, and adopt relevant strategies, plans, and programs. Algeria, Egypt, Israel, Lebanon, Libya, Morocco, Syria, Tunisia, and Turkey are parties, both to the Barcelona Convention and to this protocol.Footnote ⁴⁵

2.2.2.2 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea Contiguous Atlantic Area

The 1996 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea Contiguous Atlantic Area (ACCOBAMS) entered into force in 2001, with an aim to protect cetaceans in the Black Sea, Mediterranean Sea, and the nearby Atlantic area west of the Straits of Gibraltar.Footnote ⁴⁶ Though, in 2010, the parties agreed to expand the geographic area to include the exclusive economic zones of Spain and Portugal. ACCOBAMS promotes the conservation and sustainable management of marine mammals and their habitats by, among other things, developing and improving the current knowledge on these animals. £It sets out conservation, research, and management measures to be adhered to by parties, in relation to the adoption and enforcement of national legislation; assessment and management of human‐cetacean interactions; habitat protection; research and monitoring; capacity building, collection, and dissemination of information, training, and education; and responses to emergency situations.Footnote ⁴⁷ The MENA contracting parties are Algeria, Egypt, Lebanon, Libya, Morocco, Syria, Tunisia, and Turkey, while Israel is a signatory.Footnote ⁴⁸

2.2.2.3 Agreement on the Conservation of African-Eurasian Migratory Waterbirds

The 1995 Agreement on the Conservation of African-Eurasian Migratory Waterbirds (AEWA) entered into force in 1999,Footnote ⁴⁹ under the Convention on Migratory Species (CMS), with the goal of protecting migratory waterbirds and their wetlands environment within Africa, Europe, the Middle East, Central Asia, Greenland, and the Canadian Archipelago, as they migrate across their habitats. It covers the conservation of 255 species of birds dependent on wetlands during some part of their yearly life cycle. They include a diverse array of birds, including divers, grebes, pelicans, cormorants, herons, storks, rails, ibises, spoonbills, flamingos, ducks, swans, geese, cranes, waders, gulls, terns, tropic birds, auks, frigate birds, and even the South African penguin. AEWA has in place an Action Plan that specifies various measures that parties must take to ensure the conservation of migratory waterbirds. The following MENA countries are party to AEWA: Algeria, Djibouti, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, Saudi Arabia, Syria, and Tunisia.Footnote ⁵⁰

2.2.2.4 Regional Convention for the Conservation of the Red Sea and the Gulf of Aden Environment

The 1982 Regional Convention for the Conservation of the Red Sea and the Gulf of Aden Environment (Jeddah Convention) entered into force in 1985. There are seven parties to the Jeddah Convention, including Djibouti, Egypt, Jordan, Saudi Arabia, and Yemen. It addresses environmental issues and the sustainable use of natural resources in the region, including pollution, overfishing, and habitat destruction. The geographical coverage is of the entire sea area, taking into account integrated ecosystems of the Red Sea, Gulf of Aqaba, Gulf of Suez, Suez Canal to its end on the Mediterranean, and Gulf of Aden, as bounded by rhumb lines (lines on the surface of the earth that cross all successive meridians at a constant angle).

2.2.2.5 Kuwait Regional Convention on Protection of Marine Environment Convention

The 1978 Kuwait Regional Convention on Protection of Marine Environment Convention (Kuwait Convention), which took effect in 1979,Footnote ⁵¹ aims to prevent, abate, and combat pollution of the marine environment and calls for parties to take all appropriate measures to prevent, abate, and combat pollution of the marine environment; to cooperate in taking necessary measures to deal with pollution emergencies, in scientific and technical research relating to marine pollution; and to establish appropriate roles and procedures for the determination of civil liability and compensation for damage related to the subject matter of the convention. Although focused on matters of pollution, the Kuwait Convention aims to protect, by extension, biodiversity in the marine environment. The Kuwait Convention is complemented by four Protocols: the 1989 Protocol concerning Marine Pollution resulting from Exploration and Exploitation of the Continental Shelf (in force since 1990); the 1998 Protocol on the Control of Marine Transboundary Movements and Disposal of Hazardous Wastes and Other Wastes (in force since 2005); the 1978 Protocol Concerning Regional Co-operation in Combating Pollution by Oil and other Harmful Substances in Cases of Emergency (in force since 1979); and the 1990 Protocol for the Protection of the Marine Environment against Pollution from Land-Based Sources (in force since 1993). The parties to the Kuwait Convention are Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, and United Arab Emirates. Most of the Kuwait Convention parties are also parties to the protocols.Footnote ⁵²

2.2.2.6 Gulf Cooperation Council Wildlife Convention

The 2001 Convention on the Conservation of Wildlife and their Natural Habitats in Gulf Cooperation Council (GCC) Countries (GCC Wildlife Convention) entered into force in 2003 and aims at conserving ecosystems and wildlife, especially the species threatened with extinction through legislation, habitat protection and management, environmental impact assessment studies, environmental education, research cooperation, and training, among other things. The GCC Wildlife Convention also provides for the establishment of the Permanent Committee for Conservation of Wildlife and its Natural Habitats in the Gulf Co-operation Council of States formed by representatives from the GCC states, as an implementing body with the responsibility to establish requirements of wildlife conservation and evaluation of the effectiveness of the approved measures, monitoring, and research and data collection.Footnote ⁵³

2.2.2.7 African Convention on the Conservation of Nature and Natural Resources

The 1968/2017 African Convention on the Conservation of Nature and Natural Resources (African Convention) entered in force in 1969. It aims to encourage the conservation, utilization, and development of soil, water, flora, and fauna for the present and future welfare of mankind, from an economic, nutritional, scientific, educational, cultural, and aesthetic point of view. The Organization of the African Union discharges the secretariat functions.Footnote ⁵⁴

2.3.1.1 National Biodiversity Strategies and Action Plans

Article 6 (a) of the CBD requires parties to “[d]evelop national strategies, plans or programmes for the conservation and sustainable use of biological diversity.” Target 17 of the Strategic Plan stipulates that, “[b]y 2015, each Party has developed, adopted as a policy instrument, and has commenced implementing an effective, participatory and updated national biodiversity strategy and action plan.”Footnote ⁶⁶ This is one of the few Aichi targets that was partially achieved by 2020. NBSAPs are integral to national biodiversity planning in that they provide a roadmap on how parties will fulfill the CBD’s objectives and the corresponding steps to be taken.Footnote ⁶⁷

Overall, 99 percent of CBD parties have developed at least one NBSAP,Footnote ⁶⁸ including a majority of the MENA countries. About fourteen of the MENA parties revised or updated their NBSAPs following the inception of the 2011–2020 Strategic Plan.Footnote ⁶⁹ However, of the fourteen, only the United Arab Emirates and Jordan had prepared or updated their NBSAP by the December 2015 cut-off date. Morocco, Tunisia, and Turkey have submitted three versions of their NBSAPs so far.Footnote ⁷⁰ Israel, Oman, Syrian Arabic Republic, and Saudi Arabia all submitted their last NBSAP prior to the Strategic Plan in 2010, 2004, 2006, and 2008, respectively.Footnote ⁷¹ From the CBD’s repository, Libya and Palestine do not appear to have submitted any pre- or post-2011 NBSAPs, at the time of writing this chapter (Table 2.1).Footnote ⁷²

Notably, the number of parties that have adopted their NBSAPs as policy instruments is limited.Footnote ⁷³ While the development of the NBSAPs reflects positive efforts toward achieving the objectives of the CBD, the delay between adoption of the Strategic Plan and the NBSAPs may have slowed down actions to achieve Aichi targets.Footnote ⁷⁴

It is a challenge to provide a neat analysis of the NBSAPs given that parties adopt different national targets and apply national indicators in an uneven way that may not correspond to the global targets.Footnote ⁷⁵ Nonetheless, it is worth noting that, unlike the first generation of NBSAPs, several of the revised/updated NBSAPs were developed through a consultative process. This is shown, for instance, in the Bahrain 2016–2021 NBSAP, where the NBSAP project team engaged national stakeholders from the public and private sectors, academia, research institutions, civil society, and media, through consultative workshops, focus group discussions, and one-on-one sessions.Footnote ⁷⁶ Other countries that took a similar approach include Egypt (2015–2030 NBSAP), which set up a National Biodiversity Committee of stakeholders, supported by national and international consultants, and informed by stakeholder consultations.Footnote ⁷⁷ In Djibouti, the NBSAP was developed in consideration of Vision Djibouti 2035, which recommends that populations should be consulted and participate in policy processes.Footnote ⁷⁸ For Iraq, stakeholders were consulted, including the State Ministry for Women’s Affairs, Ministry of Oil, Ministry of Planning, provincial councils, media and communications agencies, private sector, celebrities, indigenous and local communities, and religious leaders.Footnote ⁷⁹ Looking ahead, the Jordan 2015–2020 NBSAP prioritizes a national consultation process for the review of the next iteration of the NBSAP.Footnote ⁸⁰

This consultative aspect is closely complemented by a whole-of-government approach adopted by about sixty-nine NBSAPs globally, including within the MENA region. For instance, in Algeria, about ten sectors, such as transportation, public works, education, and fisheries, have prepared biodiversity action plans.Footnote ⁸¹ The country’s 2016–2030 NBSAP encourages the integration of biodiversity into sectoral action plans and local policies.Footnote ⁸²

The MENA parties have adopted diverse national goals and targets within their NBSAPs. Most of the goals are aligned to the goals under the global Strategic Plan. From a sample of the NBSAPs, one major area that has been prioritized by the countries is good governance and the mainstreaming of biodiversity into national and sectoral planning and the wider society.Footnote ⁸³ Another emerging theme is that of prevention through goals to minimize anthropogenic pressures on biodiversity, conserve terrestrial aquatic and coastal ecosystems, and promote sustainable use of natural resources.Footnote ⁸⁴ As such, several parties aim to establish or enhance protected areas, safeguard ecosystem services, and protect priority species and genetic resources.Footnote ⁸⁵ Others, such as Jordan, Tunisia, Egypt, and Djibouti, recognize the linkages between protecting biodiversity and addressing climate change through goals on enhancing climate resilience and adaptation, among others.

Moreover, the sampled MENA countries give prominence to enhanced awareness, knowledge, and understanding of biodiversity by different facets of society, including through capacity-building initiatives, communication outreach, bridging gaps between scientists, citizens, and decision-makers, and developing traditional knowledge.Footnote ⁸⁶ Some countries, such as Tunisia, Yemen, and Morocco, have mainstreamed gender considerations into their NBSAPs, recognized women, rural communities, and indigenous peoples as guardians of nature, and encouraged their participation in national biodiversity planning. Lastly, several NBSAPs highlight enhancing monitoring and reporting of implementation as a strategic goal.

The broad strategic goals or prioritization areas are complemented by the national targets, and the envisaged implementation measures toward these targets are enumerated in the NBSAPs.Footnote ⁸⁷ Such measures include resource mobilization strategies, establishment of stakeholder and governmental coordination committees, stakeholder engagement and partnership building, capacity-building initiatives, research studies, development of local and regional biodiversity plans, media and communication campaigns, and development of legislation. The common anticipated challenges included limited resources to implement the NBSAPs, lack of proper indicators to measure use of the NBSAPs as policy instruments,Footnote ⁸⁸ and limited biodiversity expertise and scientific knowledge.

The progress of implementation of the NBSAPs is further explored in the latest, sixth round of national reports.

2.3.1.2 National Reports

Article 26 of the CBD calls for parties to report measures taken for implementation of the CBD and their effectiveness in meeting the CBD’s objectives.Footnote ⁸⁹ Many of the MENA parties to the CBD have adhered to Article 26 by submitting their latest round of reports, the sixth national reports. From the CBD repository, Bahrain, Libya, Palestine, Turkey, and Syria had not submitted their sixth national reports by the time of writing this chapter (Table 2.2).Footnote ⁹⁰

A random sampling of four national reports (Iraq, Egypt, Yemen, and Jordan) suggests that there is a breadth of national targets and corresponding activities carried out in the region. The following subsections provide a summary of some of the key matters reported.Footnote ⁹¹

2.4.1.1 Contribution and Rights of Indigenous Peoples and Local Communities

The GBO5 identifies a need to further integrate the role of indigenous peoples and local communities into biodiversity planning and implementation.Footnote ¹¹⁹ Indigenous peoples own, manage, or occupy at least a quarter of the world’s land.Footnote ¹²⁰ Together with local communities, they have a wealth of traditional knowledge and customary practices on conservation and sustainable use of natural resources. The framework’s reference to these two groups is a result of deliberate efforts at the international level to ensure that their long-standing contribution to safeguarding biodiversity is recognized. Their consideration was a prevalent theme in stakeholders’ submissions to the GBF development process.Footnote ¹²¹ In fact, one of the working groups, WG8J-11, focused on examining the role of collective actions of indigenous peoples and local communities to the GBF.Footnote ¹²²

The GBF cements the position of indigenous peoples and local communities as guardians of biodiversity and as partners in its conservation, restoration, and sustainable use.Footnote ¹²³ The framework requires parties, including MENA parties, to ensure that the “rights, knowledge, including traditional knowledge, innovations, world views, values and practices of indigenous peoples and local communities are respected, documented, preserved with their free, prior informed consent.”Footnote ¹²⁴

The concept of prior informed consent is a significant addition to the framework. It is associated with treaty norms such as under the UN Declaration on the Rights to of Indigenous Peoples,Footnote ¹²⁵ and the Indigenous and Tribal Peoples Convention by the International Labour Organization (ILO),Footnote ¹²⁶ and is also embodied in the CBD itself, which subjects access to genetic resources to prior informed consent,Footnote ¹²⁷ as well as conventions such as the BaselFootnote ¹²⁸ and RotterdamFootnote ¹²⁹ Conventions. The concept is also connected to the enjoyment of rights, primarily access to information and the right of public participation in environmental decision-making.

In other regions, namely Europe, the Biodiversity Strategy for 2030 calls for respect of the rights of, and the full and effective participation of, indigenous peoples and local communities.Footnote ¹³⁰ The European Union has also called on its member states to ratify the ILO Convention on Indigenous and Tribal Peoples.

2.4.1.2 A Human Rights-Based Approach

The right to a clean, healthy, and sustainable environment is universally recognized through a 2022 UN General Assembly resolution that was supported by several MENA countries, led by Morocco.Footnote ¹³¹ About eighty-eight countries globally, including Algeria, Egypt, Morocco, Palestine, Iraq, Turkey, and Tunisia have already enshrined a variation of this right into their constitutions.Footnote ¹³² The right is related to other substantive rights, such as the right to life, right to water, right to culture, and right to a private family life, as well as procedural rights, such as the rights of access to information, public participation, access to justice, and nondiscrimination,Footnote ¹³³ most of which are captured under the Universal Declaration on Human Rights,Footnote ¹³⁴ and treaties such as the International Covenant on Civil and Political Rights.Footnote ¹³⁵ Overall, environmental rights contribute to environmental rule of law as they provide a framework for enforcing laws and providing redress, especially for vulnerable populations.

While there are differing views on what a human rights-based approach means for biodiversity, especially in regard to conservation, the Office of the United Nations High Commissioner for Human Rights (OHCHR) describes it as an approach that promotes respect, protection, promotion, and fulfillment of the full range of human rights and emphasizes the obligation of duty bearers to fulfill their human rights obligations.Footnote ¹³⁶ The full implementation of MEAs such as the CBD is a prerequisite for the right to a clean, healthy, and sustainable environment.Footnote ¹³⁷ Practically, biodiversity plans, policies, and processes should be anchored in a system of rights and corresponding obligations where all persons are empowered to claim their rights.Footnote ¹³⁸

MENA countries may integrate human rights in the update and implementation of their NBSAPs. OHCHR provides guidance on how to do this through a 2022 brief that provides a step-by-step human rights lens on NBSAPs development, content, and implementation processes.Footnote ¹³⁹ The brief encourages a participatory, bottom-up, consensus building in the NBSAP development phase, mainstreaming of international and domestic human rights obligations into the NBSAP content, and safeguarding of human rights procedural and substantive elements in NBSAP implementation. Another area that MENA countries could explore is the emerging notion of nature rights where distinct biodiversity elements are assigned rights as though they were living beings.Footnote ¹⁴⁰

2.4.1.3 Consistency with International Agreements or Instruments

Article 22 of the CBD suggests consistency with other international conventions to the extent that such conventions do not cross purposes with the objectives of the CBD. The article further requires the parties to implement the CBD in line with the rights and obligations under the law of sea in regard to the marine environment.

Parties to the CBD hold value in promoting synergies between relevant conventions, particularly biodiversity-related conventions. Through a process known as the Bern process, UNEP fosters the engagement of other MEAs in the advancement of the GBF.Footnote ¹⁴¹ In the lead-up to the post-2020 GBF, and based on a request by CBD parties, a workshop was organized among the parties of biodiversity-related conventions to assess their contribution to the framework.Footnote ¹⁴² In fact, in the decision 15/13 on cooperation, the CBD COP invited the governing bodies of the other conventions to endorse the framework and support its operationalization. Among the numerous international and regional biodiversity-related conventions applicable in the MENA region, CITES is a good example of a convention that aims to synergize with the CBD. The CITES Strategic Vision 2008–2020 was mapped against the Aichi Targets in the 2011–2020 Strategic Plan for Biodiversity,Footnote ¹⁴³ and now CITES COP19 has adopted a decision to strengthen cooperation, collaboration, and synergies at all relevant levels between CITES and the GBF.Footnote ¹⁴⁴ Other MEAs have also taken similar steps: For example, the Ramsar Convention in COP Resolution XIV/26,Footnote ¹⁴⁵ CMS COP Decision 13.4,Footnote ¹⁴⁶ and the Decision 44 COM 7.2 of the World Heritage Committee.Footnote ¹⁴⁷

Paragraph 24 of the GBF envisages collaboration, cooperation, and synergies with other MEAs as well as international organizations and processes. Given the interlinkages between the triple planetary crises, it is important for MENA countries implementing the GBF to align to climate commitments and pollution- and waste-related processes. To provide an example of such alignment, two-thirds of nationally determined contributions under the Paris Agreement refer to nature-based solutions.Footnote ¹⁴⁸

Additionally, MENA parties should be conscious of relevant ongoing processes such as the development of a legally binding instrument on plastic pollution, including in the marine environment,Footnote ¹⁴⁹ and the recent establishment of a treaty on high seas.Footnote ¹⁵⁰

2.4.1.4 Science–Policy Interface

Effective policies to combat biodiversity loss must be based on the best available knowledge.Footnote ¹⁵¹ This is why the GBF requires that it is implemented based on “transformative, innovative and transdisciplinary education, formal and informal, at all levels, including science–policy interface studies and lifelong learning processes, recognizing diverse world views, values and knowledge systems of indigenous peoples and local communities.”Footnote ¹⁵² The aspect of a science–policy interface is particularly important and was focused on in the lead-up to the GBF through an Ad Hoc Technical Expert Working Group on digital sequence information on genetic resources.Footnote ¹⁵³ A science–policy interface is beneficial as it’s typically coupled with stakeholder consultations, diversity in experts and expertise, and the ability to break down complex issues for policymakers.Footnote ¹⁵⁴ It is important for MENA countries to heed evidence-backed findings from credible institutions and traditional knowledge at a global and national level.

3.3.1.1 Biodiversity

Egypt, as the most populous country in the Arab world,Footnote ³² has long grappled with challenges related to water scarcity and biodiversity conservation. Given its heavy reliance on the Nile River for fresh water and its rich biodiversity, particularly in areas such as the Red Sea and Sinai, Egypt has developed comprehensive strategies to address these issues. Egypt’s strategies, such as the National Water Resources Plan (NWRP)Footnote ³³ and the Biodiversity Strategy and Action Plan,Footnote ³⁴ while distinct, both concern the protection of biodiversity and water resources. For instance, the Biodiversity Strategy may highlight the importance of freshwater ecosystems,Footnote ³⁵ and the NWRP might emphasize the ecological importance of maintaining water quality for habitats.Footnote ³⁶

Tunisia has made efforts to align its environmental strategies with global standards, particularly in line with the Sustainable Development Goals.Footnote ³⁷ Wetland conservation, such as the Tunisian government’s preservation and desalination efforts in Ichkeul National Park, represents an area where water and biodiversity issues naturally intersect.Footnote ³⁸ While there are specific initiatives addressing water and biodiversity issues, respectively, explicit integrated strategies that bridge both domains at the national policy level remain elusive.

Jordan’s vulnerability to water scarcity has led it to be very proactive in its water governance. Similar to Tunisia, the Azraq Wetland Reserve is a notable example where water management and biodiversity conservation intersect.Footnote ³⁹ The reserve, once a significant stopover for migratory birds,Footnote ⁴⁰ had faced ecological challenges due to the overextraction of groundwater. Restoration efforts have aimed at reviving the wetland and, in the process, preserving its biodiversity. This example indicates some level of integrated strategy, although it may not be systematically applied at a national policy level.

Lebanon has faced myriad environmental and political challenges, which may have impacted its ability to systematically integrate water and biodiversity governance. The country has, however, made strides in designating and conserving its Important Plant AreasFootnote ⁴¹ and Important Bird Areas,Footnote ⁴² some of which are wetlands, indicating a recognition of the intersection between water and biodiversity. However, broader integrated strategies at the national level may still be in the nascent stages or facing implementation challenges due to other pressing issues in the country.

While these countries have demonstrated an understanding of the importance of both water governance and biodiversity conservation, explicit and comprehensive national strategies that integrate both domains may still be in development in the North African and Levant subregions of the MENA. Integrating these domains requires a multifaceted approach, considering socio-political, economic, and ecological factors, which can be complex in rapidly changing environments.

4.2.1.1 Nonbinding Instruments

Though not legally binding, the United Nations General Assembly Declaration of Principles of August 14, 1992, for a global consensus on the management, conservation, and sustainable development of all types of forests, is a source of inspiration for all actors involved in forest protection.Footnote ³² This declaration recognizes that forest protection is a cross-cutting issue touching on all environmental, economic, social, and environmental issues. National policies and programs must consider the relationship between the conservation, management, and sustainable development of forests and consider all aspects related to the production, consumption, and recycling of forest products.Footnote ³³

In addition to this declaration, there is the 2030 Agenda Sustainable Development Goals (SDGs), one of whose goals concerns the sustainable development of forests and the preservation of biodiversity.Footnote ³⁴ SDG 15, which most directly addresses biological diversity, calls on countries to ensure “the conservation, restoration and sustainable use of terrestrial and inland freshwater ecosystems and their services, in particular forests, wetlands, mountains and drylands, in line with obligations under international agreements.” It also encourages countries to “promote the implementation of sustainable management of all types of forests, halt deforestation, restore degraded forests and substantially increase afforestation and reforestation globally.”Footnote ³⁵

Obviously, this will not be possible without the mobilization of significant resources from all sources and at all levels to finance sustainable forest management and to encourage developing countries to give priority to sustainable forest management, including forest conservation and reforestation.

4.2.1.2 General Environmental Conventions

The forest and its biodiversity are at the crossroads of all environmental protection instruments, so there is the climate regime based on the United Nations Framework Convention on Climate Change (UNFCCC), the biological diversity based on the Convention on Biological Diversity (CBD), and the protection of wetlands because of the Ramsar Convention.Footnote ³⁶

First, mention should be made of the content of the Convention concerning the Protection of the Natural and Cultural Heritage adopted on November 16, 1972 and ratified by Morocco on October 28, 1975.Footnote ³⁷ The second article of this convention considers natural sites or strictly demarcated natural areas which have outstanding universal value from the point of view of science, conservation, or natural beauty to be part of World Heritage, and forests meet this definition. Thus, state parties must identify, protect, enhance, and transmit them to future generations.Footnote ³⁸

The Convention on Wetlands of International Importance, especially as Waterfowl Habitat, adopted on February 2, 1971 and known as the Ramsar Convention,Footnote ³⁹ was ratified by Morocco on October 10, 1980.Footnote ⁴⁰ As of 2020, the country had designated thirty-eight Ramsar sites, covering a total area of 316,086 hectares.Footnote ⁴¹ The first four wetlands of international importance were inscribed in 1980 and twelve new ones were inscribed in 2019.Footnote ⁴²

This convention indirectly concerns forests since some fall within their scope. This convention also concerns biodiversity, the forests being important reservoirs of fauna and flora. Thus, to be classified as a Ramsar area, it is necessary to support endangered species or species important for the conservation of biodiversity.Footnote ⁴³

In addition, the CBD does not contain forest-specific provisions.Footnote ⁴⁴ However, it is a space for the protection of biological diversity. Morocco signed the CBD in 1992 and ratified it on August 21, 1995.Footnote ⁴⁵ Indeed, forests are indispensable because of their role as habitats. State parties should adopt procedures to require environmental impact assessment of projects likely to harm biodiversity. In the same context, the role played by the United Nations Convention to Combat Desertification, signed on June 17, 1994, is particularly significant.Footnote ⁴⁶ Since the destruction of forests is usually the cause of desertification, it is necessary to protect forests and to reforest.

Finally, international instruments for environmental protection cannot be discussed without emphasizing the link between climate and forests. In this sense, the UNFCCC was adopted to stabilize greenhouse gas concentrations in the atmosphere.Footnote ⁴⁷ There is no need to demonstrate the relation between climate and forests. These are a means of combating climate change, just as forest degradation is a source of greenhouse gases. The Kyoto Protocol encourages states to promote sustainable forest management and reforestation.Footnote ⁴⁸ Forest conservation and restoration can be an element of these nationally determined contributions in the Paris Agreement adopted at the Conference of the Parties (COP) 21, 2015, in Paris.Footnote ⁴⁹

Ultimately, despite the goodwill of the international community, expressed through the disputed instruments set out here, some of their stipulations show flexibility by using terminology such as “as far as possible.”Footnote ⁵⁰ This greatly influences the implementation of these stipulations and their incorporation into domestic law. The doctrine adds that the CBD attaches great importance to commercial imperatives and the commitment of financial resources is also the Achilles’ heel of environmental protection.Footnote ⁵¹

4.3.2.1 The Protection of the Forest Domain

The preservation of the forest domain against any encroachment is the cornerstone of any integrated management strategy. In Morocco, there is a practice which consists of separating plots of land from the forest and making them available to investors. This practice challenges any public forest protection policy.

The forest domain has a strict protective regime. It is not transferable and not acquired by prescription, nor can it be seized. However, this protection accepts one exception, which is provided for in the first paragraph of Chapter II of the Dahir of October 10, 1917, on the conservation and exploitation of forests, which states: “The property of the forest store cannot be sold, and its separation from the forest system can only be done for the benefit of the public interest.”Footnote ⁷⁰ There is a possibility of separating the forest from its system if there is a public interest.Footnote ⁷¹ Although the separation process is complex and requires the intervention of different parties and multiple procedures, it ends with the issuance of a decree published in the official bulletin, based on the opinion of the administrative committee established by the decree of June 6, 1959.Footnote ⁷² This decree subjects the separate piece of forest to the rules of the private property of the state, allowing it to be freely disposed of.

If the rule requires the separation of the forest domain from its system in the public interest, the reality sometimes testifies otherwise, as it will be down to the forest to assign its real estate to serve various projects. The parts separated from the forest may be allocated to tourism projects or the creation of industrial zones, dams, mines, quarries, etc. During the last fifty years, 7,000 hectares of forest domain have been allocated to such projects, without searching for alternatives.Footnote ⁷³ Among the factors that allow these abuses is that the legislative and regulatory texts regulating the procedure for separating property from the forest system do not deal with the destiny of the property after the separation process. There is nothing to prevent the Directorate of State Property from changing this allocation from one specific project to another, as the condition of public benefit may be achieved during the initiation of the separation procedure. After the completion of the process, the allocation is changed to another project that does not necessarily achieve public benefit and can be related to commercial purposes.

This leads to the degradation of the forest and consequently its biodiversity. Without the preservation of the forest domain, all reforestation efforts will be ineffective. In addition, the forest may be the scene of more important economic or social activities. This fact poses a problem for environmental approval granted to economic activities within the forest area.

4.3.2.2 Environmental Assessment

The second legal problem which largely influences the protection of forests in Morocco is the authorization granted to certain types of economic projects within the forest area. It is on this occasion that the role of Law No. 49.17 on Environmental Assessment is highlighted.Footnote ⁷⁴ In fact, by expanding the field of environmental impact study and opening new areas for it, Law No. 49.17 was considered a qualitative leap in the policy of strengthening legal and institutional governance in the field of the environment.

The practice of studying the impact of economic projects on the environment has shown significant shortcomings and a series of abuses. These abuses are particularly related to the fact that the said studies are entrusted to technical study offices that are selected by the entrepreneur and paid out of his/her own pocket. A fact that raises doubts about the impartiality and objectivity of the study, especially in the face of the difficulty of conducting counter-experiences given their cost.

The obligation to conduct an environmental impact study before creating any economic activity in the forest is natural and necessary, since any activity of whatever nature may cause damage to the natural resources of the forest and thus affect the ecosystem. Despite the negative repercussions of these activities, they are licensed, and perhaps among the most controversial activities are quarries because of their serious effects on the ecological balance. A number of reports explicitly indicate that the exploitation of quarries within the forest property causes the destruction of existing shrubs and leads to an imbalance of the forest ecosystem.Footnote ⁷⁵ Moreover, the bodies directly involved in the management of forest property are also aware of the negative impact of this type of project on the ecosystem and ecological balance of the forest, as explicitly indicated in the report on the environmental situation in Morocco, which was prepared by the Ministry of Energy Transition and Sustainable Development for the year 2020.Footnote ⁷⁶ Motivated by its awareness of the negative impact of economic projects on the forest system, the Water and Forestry Department asked for an environmental impact study before the issuance of the law itself.Footnote ⁷⁷

This did not prevent these authorities from granting a license to establish a gravel quarry in a forest nature reserve, for example.Footnote ⁷⁸ This issue raises an obvious question: How it is possible to license a quarry to extract gravel inside the forest while this activity has clear effects that should require in-depth studies to be carried out? In fact, the extraction process requires the use of explosive materials, the uprooting of young trees, and the spread of dust, all of which are easy to prove. This raises doubts about the objectivity of environmental impact studies carried out by companies involved in economic activity, which were mentioned earlier, and which call for legislative intervention since the new law maintained the same procedures specified in the previous text.Footnote ⁷⁹

4.3.2.3 The Fragmentation of the Legal Framework on Forest and Biodiversity

The third issue which can prevent the integrated management of forests in Morocco is that the legal framework related to environment and specifically to forests and biodiversity is fragmented and dates back to the beginning of the twentieth century. Indeed, there are at least eleven laws about forest and biodiversity, most of them issued in the first years of the twentieth century.

For example, we have the Dahir issued on January 3, 1916, establishing special regulations to determine private properties of the state (Amlak Makhzaniya); the Dahir dated October 10, 1917, regarding the preservation and exploitation of forests;Footnote ⁸⁰ the Dahir dated March 4, 1925, relating to the protection and identification of argan tree forests;Footnote ⁸¹ the Dahir issued on August 15, 1928, specifying the conditions to make lands planted by the “Hulfa” part of private property;Footnote ⁸² the Dahir dated July 23, 1930, regarding the preservation and exploitation of the “Hulfa” plant;Footnote ⁸³ the Dahir issued on September 20, 1976, regulating the population’s contribution to the development of the forest economy;Footnote ⁸⁴ the Dahir of April 11, 1922, regarding fishing and aquaculture in wild waters, as amended by the Decrees of January 23, 1957, June 16, 1961, August 17, 2011, and August 4, 2015;Footnote ⁸⁵ Law No. 54.03, issued on June 15, 2006, amending and supplementing the Dahir, issued on July 21, 2023, relating to the control of hunting;Footnote ⁸⁶ Law No. 22.07, regarding protected areas issued on July 16, 2010;Footnote ⁸⁷ and Law No. 29.05, regarding the protection of species of wild plants and animals and the control of trade in them, issued on July 2, 2011.Footnote ⁸⁸ All these laws have several implementing provisions (decrees and decisions).Footnote ⁸⁹

This multiplication and fragmentation of the legal framework about forest and biodiversity make the legal provision difficult to understand and enforce, and it can also lead to the absence of coherence between all the texts of laws. This situation is not specific to forest and biodiversity but it concerns all the environmental legal frameworks.

To this fragmentation one may add the multiplication of the implementing provisions. Those enforcement texts are one of the most important obstacles to the activation of legal texts related to the environment in general, as some laws require more than twenty enforcement texts, which limits their effectiveness. For example, the activation of Law No. 03.12, on environmental impact studies, required two decrees, two decisions, and a ministerial circular, which was changed in 2020 by Law No. 49.17 on environmental assessment, which raises the need to prepare new implementing provisions as well as to amend other legal texts referring to the contents of the old law. Moreover, there is a set of legal texts that were never implemented in the field since they were waiting for the publication of the implementing provisions (Law No. 08.01 on Quarries 2002, which did not come into force, and was replaced in 2015 by Law 27.13).Footnote ⁹⁰

4.4.1.1 The Forest Domain

The Dahir of October 10, 1917, on the conservation and exploitation of forests, allows the government to separate part of the forest domain to devote it to a social or economic project.Footnote ⁹⁷ The impact of this practice on the forest sector is certainly negative, as explained earlier. This is why it is imperative to put an end to it.

This situation necessitates legislative intervention that expressly prevents the separation of the forest from its system. In the face of climate change and the disasters that the forest suffers, chiefly fires, which have greatly affected the forest area, there is no justification for maintaining this separation rule. This is due to its repercussions on the area of the forest property in Morocco, and thus on the indicators of ecological balance and the country’s ecosystem.Footnote ⁹⁸ If it is hard to achieve, at least some provisions shall be stipulated to prevent the allocation of the separated property for a purpose other than the public benefit. This should be done while specifying a mechanism to monitor this process and issuing a decree by the head of government to retract the separation process in case it is proven that the rule of public benefit has been violated.

The government should not rely on the forest as a real estate container, as its tasks go beyond its pure real estate nature, and it is also represents a basic component of the ecosystem, an ecological balance reservoir, and a natural heritage shared by all members of society. It is a fragile component that should be preserved and developed rather than depleted and allocated to projects of whatever nature.

In general, the management of the forest domain must imperatively be part of a sustainable logic, therefore any economic project that does not guarantee the sustainability of the forest and its biodiversity must be abandoned. The provisions of Law No. 49.17 on environmental assessment must be unequivocally on the harmful repercussions of certain economic projects in the forestry areas and prohibit their implementation.

4.4.1.2 Improving Legal Frameworks in the Environment

The predominance of legal fragmentation illustrates the need to review the philosophy of legislation in the field of the environment through the establishment of an “environment code” that would put an end to sporadic legislation related to different areas that do not have a global logic surrounding the environment in its general context.

Developing an environmental code would simplify a series of legal and administrative procedures related to environmental protection. The code would not be sufficient to accommodate all the texts related to the environment but it can include the most important of these texts, which have a direct impact on the protection of the environment in Morocco. The most important tasks of the environment code would be to simplify the process of preserving the environment and the process of implementing the legal text. It would allow for the streamlined teaching of environmental law and the identification of responsibilities and the creation of a special institution in charge of applying all the legal texts related to environment protection and the climate change adaptation and mitigation efforts; this institution should oversee the coordination between the different departments and all the stakeholders.

This environmental code should have two sections. The first section should concern the legislative provisions, whose first part should include common requirements (definitions, basic and general principles related to the environment, environmental impact study, public institutions, environmental protection associations, environmental protection programs, common requirements regarding violations and penalties, financial requirements, administrative procedures, and disputes).

The second part should be concerned with the physical environment (water, seawater, climate, air, forests, the land and what is below, grazing, quarries, and violations of the environment). The third part could contain natural spaces (coasts, coral reefs, nature reserves, protected natural sites, landscapes, hiking and access to nature, green belt, and blue belt). The fourth should concern the natural heritage (protection of natural assets, fishing, and hunting). The fifth and last part could focus on pollution and risk prevention (natural risk prevention, industrial risk prevention, audiovisual pollution, waste management and disposal).

The second section of this code should contain all the regulatory provisions that enable the content of the code to be applied procedurally. They would be decrees, decisions, and other texts that codify the organizational aspect of the process and that do not require a legislative framework and are mainly aimed at demonstrating the mode and methods of implementing the code provision (registration forms, model contracts, professional cards, documents for obtaining licenses, etc.).

An environmental code can be easily developed in Morocco because there are existing legal provisions on environmental protection in general, so the work will be limited to compiling and standardizing certain requirements, particularly regarding the implementing provisions. The environmental code can clearly identify the competencies and powers of all stakeholders in environmental management, as well as those responsible for coordination between all stakeholders. If the implementation of an environmental code is difficult, the alternative would be at least to develop a code for forests.