July 2, 2012: Panel 3C - Legal and Ecological Challenges to Protecting and Restoring Biological Diversity

Legal and Ecological Challenges to Protecting and Restoring Biological Diversity Video

Mon, 02 Jul 2012 15:00:00 PDT

Is Environmental Law Ready for New Ecological Restoration Concepts?

An Cliquet — Mon, 02 Jul 2012 15:00:00 PDT

Ecological restoration is a well-recognized principle in environmental law. Restoration and rehabilitation have been included in the three Rio Conventions and/or subsequent COP decisions. Ecological restoration is a crucial step in nature conservation, as in most regions of the world species and habitats are in an unfavourable conservation status, and will need to be restored to a favourable level. Ecological restoration plays an important role in adaptation to climate change. Also, the economic benefits for ecological restoration have been demonstrated in international literature and major studies such as The Economics of Ecosystems and Biodiversity (TEEB) and have been stressed by organizations such as the International Society for Ecological Restoration (SER).

Recently a concrete global target of 15% restoration of degraded ecosystems by 2020 has been put forward (Target 15 of the Aichi Biodiversity Targets (Strategic plan 2010-2020 of the Biodiversity Convention). Also at the regional level this target has been set (Target 2 of the Biodiversity Strategy of the European Commission).

Several issues need to be resolved and concretized, both ecologically, but also legally, in order to realize these global and regional targets. Some pressing issues that arise include: the selection and prioritization of degraded ecosystems that should be restored; the inclusion in law of standards and safeguards for restoration; the relationship between restoration of biodiversity and restoration of ecosystem services; the need for legal instruments to restore nature outside protected areas; the possibilities or constraints for ecological restoration in ecosystems that are changed or degraded because of climate change. Because of the unfavourable conservation status of species and habitats worldwide, and the increased negative impact on ecosystems as a consequence of climate change, new concepts arise, such as ‘novel’ ecosystems, that differ in composition and/or function from present and past systems as consequence of changing species distributions and environmental alteration through climate change and land use change. Also, rather than conserving and restoring species and habitats into their original state and place, more flexible solutions are suggested, such as translocation or managed relocation of species (trans situ conservation). Is ‘traditional’ nature conservation law ready to cope with these more flexible solutions towards ecological restoration?

The international legal framework within the three Rio Conventions, as well as other global conventions, such as the Ramsar Convention, give us some ecological guidance, but very few legal guidance. The European legal framework on nature conservation and restoration provides more concrete legal solutions for these new challenges. An analysis of this legal framework and the relevant case law by the European Court of Justice gives some insight into the following issues: the legal obligation to set conservation/restoration goals in order to reach a favourable conservation status; the species and habitats for which restoration goals have to be made; the possibilities for restoration outside protected areas; the legal possibilities and constraints for species translocations; the possibilities and constraints for restoration of degraded ecosystems, due to natural developments or climate-changed induced developments.

Protected Areas in Amazon Region: Transfrontier Parks, the Challenges of Environmental, Social, and Cultural Diversity Protection

Solange Teles Da Silva et al. — Mon, 02 Jul 2012 15:00:00 PDT

Nature is not stuck in political boundaries. Protected areas can exist on international boundaries, considering the existence of transfrontier ecosystems, the need to protect biodiversity, water and forest. In fact, IUCN World Commission on Protected Areas (WCPA) has proposed the following terminology to protected areas sharing “common international boundaries”: Transboundary Protected Areas (TBPAs); Parks for Peace; Transboundary Conservation and Development Areas and Transboundary Migratory Corridors. In addition, other names have been used to describe these areas as transfrontiers natural reserves, border parks or parks on international borders. Some of these terms indicate a level of transboundary cooperation which may or may not exist. Thus, sometimes, the establishment of protected areas at the border can engender conflicts between conservation strategies, people that live in these areas or security issues.

The aim of this article is to study two protected areas that share international boundaries (transfrontier parcs) in Amazon Region, considering their characteristics and the degree of transboundary cooperation. At first we will define parks to Brazilian, French and Peruvian legislation, identifying the differences and similarities of their domestic laws of protected areas (parks). In a second step we will describe two parks and their process of establishment: 1) Montanhas do Tumucumaque Park (Amapá – Brazil) and Parc Amazonien of Guiana (French Guiana); 2) Chandless State Park (Brazil) and Alto Purus National Park (Peru). We will try to examine the civil society participation on the process of establishment and management of these parks. Completing this study we will focus on the mechanisms of cooperation that have been established and we will discuss the need or not of domestic law harmonization. We will highlight that a complementary approach of nature conservation and local development goals is necessary to ensure social cultural diversity protection and biodiversity conservation in Amazon Region.

Conserving Our Ecosystems: The Need to Recognize a Coherent Legal System as an Important Element of the Ecosystem Approach

Froukje Maria Platjouw — Mon, 02 Jul 2012 15:00:00 PDT

The Ecosystem Approach

The ecosystem approach, which requires a holistic and integrated approach towards an ecosystem, has been endorsed in many legal acts. At the international level, the European level and the national level, the ecosystem approach is considered an important strategy to protect our ecosystems. The aim of this paper is to examine the relationship between the architecture and nature of environmental law and the realization of the ecosystem approach.

The term ‘environmental law’ is used in its broadest understanding, meaning not only the legal acts that have the protection of the environment as their main goal, but all the legal acts that can have an effect on the environment. In the case of an ecosystem, various legal acts may be applicable at the same time or may have an effect on the ecosystem.

Due to the fragmentation of environmental law, different acts may be aimed at the protection of different elements of the ecosystem, such as the water and the species; or they aim to regulate different activities within that ecosystem, such as shipping, building, aquaculture, and fishing; or they may have an unintended effect on the ecosystem such as the adverse effects from industry, trade and transport.

The Fragmentation of Environmental Law and Governance

In this fragmented environmental law, it could be difficult or challenging to realize an ecosystem approach. This is perhaps complicated by the fact that these different legal acts are implemented under different administrative sectors with different interests, tools and traditions, and by the fact that the legal acts entail a degree of discretion or flexibility for administrative bodies.

The Weighing and Balancing of Diverging Values

Often when decisions are made that also affect the ecosystem, some form of weighing and balancing of diverging values is required. The ecosystem needs to be valued, and this value needs to be balanced against the other interests or values that are at stake in the particular case.

Both the valuation exercise and the balancing exercise are difficult. This is due to the fact that the values on both sides of the balance may be very diverging and of different nature, and therefore difficult to compare in essence. The value judgment, that comprises both the valuation exercise and the balancing exercise, plays an important role in the realization of the ecosystem approach.

Consistency and Coherence in Environmental Law

The ecosystem approach requires a degree of consistency or coherence in the regulation of value judgments by law and the carrying out of such judgments by administrative bodies. This research aims to explore how value judgments are regulated in environmental law, the degree of (in)consistency between the various legal acts towards value judgments, and how this affects the realization of the ecosystem approach.

The hypothesis is that inconsistency in environmental law allows for diverging value judgments on (parts of) the same ecosystem and that this hinders the realization of an ecosystem approach.

Facilitating Inclusive, Participatory and Human Centered Legal Approaches to Conservation- Lessons from the Dwesa-Cwebe Nature Reserve

Alexander Paterson — Mon, 02 Jul 2012 15:00:00 PDT

Prompted by developments in the international human rights, governance, ecological, property rights, protected areas and climate change discourses, the past two decades have witnessed a significant shift in international thinking on how best to conserve the globe’s natural resources through the designation of protected areas. Historically founded on protectionist, exclusionary and state-centred orientations, contemporary thinking promotes a more inclusive, participatory and human-centred approach to conservation. Translating this shift from theory into practice is naturally vexed. South Africa, like many jurisdictions, is currently grappling with this challenge, one compounded by the need to simultaneously balance the country’s contemporary socio-economic, land reform and conservation imperatives within and adjacent to these protected areas. South African policy-makers have in the past decade introduced a range of innovative laws and policies to guide this process. While providing a first step in the right direction, these initiatives appear to be beset by several theoretical problems that undermine their future utility and legitimacy. This paper seeks to critically reflect on the practical manifestation of these theoretical problems in the Dwesa-Cwebe Nature Reserve (DCNR) situated on the Eastern Coast of South Africa. This Reserve provides a perfect microcosm for doing so as it: contains some of South Africa’s most pristine coastal landscapes and estuaries; it is situated on the interface between the terrestrial and marine environs; it has a novel governance regime including communal land tenure schemes and co-management arrangements; the resources situated within it are subject to significant access and use pressures given the endemic poverty in the adjacent area; and it is currently economically unviable and requires the introduction of novel financing schemes to ensure its sustainability. The paper proceeds by providing a brief historical overview of the form and nature of the legal regime at play in the DCNR. Having provided this context, the paper turns to critically reflect on the implementation of this regime under a range of themes, namely: form of protected areas governance; planning processes; land tenure arrangements; consultation and negotiation; declaration; institutional structures; management regimes; access, use and benefit-sharing schemes; and financing and support. In respect of each of these themes, the paper seeks to: firstly, briefly introduce the nature of the theme; secondly, reflect critically on the successes and challenges relating to the theme in the context of the DCNR; and finally, draw lessons from these successes and challenges which could potentially inform the resolution of both DCNR’s challenges and those facing other jurisdictions seeking to fashion more nuanced, effective, equitable and legitimate solutions aimed at giving domestic effect to the contemporary conservation paradigm within protected areas.