Environmental Law

10/04/2020

Corona and environmental law

The rapid global spread of the infectious disease Covid-19 by the SARS-CoV-2 virus is shaking the world to its foundations. Many call it the greatest health crisis since the Spanish flu of 1918. Besides a health crisis, this is also an environmental crisis. After all, environmental problems underlie the rapid rise of infectious diseases in recent decades.

Viruses are parasites that live in wild animals without those animals noticing or bothering them. This “home base” of a virus is called a reservoir. It is estimated that 320,000 species of virus live in mammals alone. Only a fraction (less than 6,000) of these have been discovered. The most recent discovery concerns SARS-CoV-2. Viruses are thought to have existed as long as there is life on Earth. They only become harmful to humans and other animal species if they somehow escape from that reservoir and spread and multiply in all sorts of very ingenious ways. The rabies virus, for example, induces a dog to bite around so that the virus can spread, the SARS-CoV-2 virus hijacks the RNA material in human cells to multiply quickly, and the influenza virus constantly adapts to bypass the immune system.

When a virus escapes and jumps to a humans is called spillover. Such a spillover can go directly from reservoir to human, but often it happens via an intermediate step, for example a pig, a horse, a chicken, a dog. Those intermediates are called a host, from which the virus infects humans. Sometimes insects act as transmitters, called vector, such as with malaria. Besides viruses, bacteria that cause deadly infectious diseases also jump from animals to humans. Q-fever and Lyme disease are examples of this. An infectious disease that originates from animals is called zoonosis.

Of course I did not invent all this myself. I largely derive it from the book “Spillover” by the American science journalist David Quammen. Although this book dates back to 2012, it is incredibly current. It is an exciting and shocking book. Exciting because Quammen takes us on a journey around the world with scientists who research viruses and viral diseases. This detective work is very risky and complex. Shocking because Quammen (following many scientists) already predicted quite precisely in 2012 that what we are now experiencing was about to happen. He even refers to a wet market in China, where wildlife is traded for consumption, as the site of the jump, and to a corona virus as a good candidate for the next pandemic. Shocking also because the book takes you along all kinds of other animal-derived infectious diseases and makes you realize that we are actually well off with SARS-CoV-2. After all, there are also viruses that show mortality rates of 70% or even 100%. In this sense, the current corona virus is still a relatively friendly virus. I leave it to your imagination to think about what the world looks like with a pandemic of a virus with a mortality rate of 70%.

The number of zoonoses has increased sharply in recent decades. The best known example is the HIV-1 virus that causes AIDS and has a death rate of 100% (if untreated). After years of intensive research, the reservoir of this virus was discovered: a particular subspecies of chimpanzee in Cameroon. It was also discovered that the jump occurred as early as 1910 (by slaughtering a chimpanzee to serve as a ‘bushmeat’), although it took until the 1960s for the virus to really spread around the world, with so far an estimated 39 million deaths and currently some 38 million infected. But we also had SARS, MERS, Marburg, Nipah, Ebola, Hanta, etc. Various types of monkeys, bats, palm civets and pangolins were found to act as reservoirs for the viruses that cause these infectious diseases.

The increase in the number of infectious diseases from animals is attributed to three factors. Firstly, humans are advancing further and further at the expense of nature, and in particular of the habitat where the reservoir species live, whereby humans are exposed to the viruses living there. It will be clear that the slaughter of wild animals in particular is a life-threatening activity. In Wuhan, such an activity, probably by a 55 year old person on 17 November 2019, caused the pandemic we are now in. Secondly, we surround ourselves with more and more pigs, cows, chickens and other animals intended for human consumption. All potential hosts. Third, the number of people has increased enormously in the last 100 years: from 2 billion in 1927 to 7.5 billion now, mostly living in cities, close together. Moreover, these people are also very eager to travel and globalization has greatly simplified the spread of a virus. A fourth factor is also expected to play an increasingly important role in the faster emergence of zoonoses: climate change. Climate change changes ecosystems and causes viruses, with their reservoir, host or vector, to go on the move. As a consequence, viruses move to areas where they did not previously exist.

In this way, zoonoses are an environmental problem. Environmental law comes to the fore as a field that needs to play a role in preventing, or at least slowing down, the spread of dangerous infectious diseases. It will be clear that the prevention of a spillover is the most source-oriented measure. Better protection of natural areas, combating poaching, banning bush meat trade and restricting wildlife trade are obvious measures for which often legal instruments already exist. These tools will need to be sharpened and better applied, as professor of environmental law Nicholas Robinson from the USA already wrote in a blog post before the virus reached the US.

In addition, we have to discuss the keeping of livestock. The question is whether we can continue the approach that is now being taken to combat diseases such as swine fever, bird flu and Q-fever, as it is becoming increasingly clear that we are on a time bomb with many undetected and potentially life-threatening viruses. I myself see this as yet another argument, besides pollution of air, soil and water and climate, to discourage meat production and consumption through regulation.

Air pollution also appears to play a role, at least with Covid-19. There is now research that shows a clear link between the amount of nitrogen deposition in an area and the number of fatalities, both in Italy/Spain/France/Germany and in England. The hypothesis is that lungs damaged by nitrogen are less resistant to this disease. Particulate matter also seems to play a similar role. In the United States and in Italy, researchers have discovered that the virus uses tiny particles in the air as a taxi and can therefore spread more easily. The US research, for example, concludes that a small increase in long-term exposure to PM_2.5 leads to a large increase in the COVID-19 death rate. These studies explain why areas with serious pollution by nitrogen and particulate matter are particularly affected. Air quality regulation is therefore also relevant for the prevention of virus-borne diseases. All this shows once again that in nature everything is interrelated.

You can also think of regulations that are intended to prevent the spread of viruses after a jump has occurred. Examples may be rules for buildings and spatial planning, such as rules with regard to ventilation systems to prevent dispersal of airborne viruses and the availability of sufficient washing facilities and disinfectant items in public space. Finally, of course, all kinds of administrative adjustments are needed to a ‘lockdown’ situation, such as the possibility to adjust legal deadlines, to replace physical inspection of documents by digital inspection, to hold hearings and court room sessions via Zoom or other online platforms, to enable digital decision-making by administrative bodies. etc. Various emergency laws are currently being prepared for this in the Netherlands and other countries. This will prove to be useful for the next pandemic. It is certain that it will come. Scientists are still warning against this: “we are in an era now of chronic emergency“.

12/10/2019

Allowing the legal hunting of strictly protected wolves to avoid their illegal killing?

On 10 October 2019 the Court of Justice of the European Union issued a preliminary ruling of importance for the application of the species protection provisions of the Habitats Directive – the principal piece of EU nature conservation law – in Case C-674/17. The underlying case involves the hunting of wolves (Canis lupus) in Finland, the legality of which had been contested by an NGO in the Finnish courts. (This is the EU Court’s second case on the hunting of wolves in Finland, following Case C-342/05, decided in 2007.) The Finnish judge asked the Court of Justice of the EU to clarify certain issues regarding the compatibility of the wolf hunt with the Habitats Directive.

The Finnish court’s questions concerned the scope and interpretation of Article 16(1), which provides the basis on which member state authorities may derogate from the prohibitions in Article 12, and in particular the interpretation of the mystifying derogation ground described in Article 16(1)(e). Wolves in the southern half of Finland, and in most other parts of the EU, have the status of strictly protected species. So do many other species, listed in Annex IV of the Habitats Directive. Article 12 of the Directive requires member states to prohibit the deliberate killing of animals belonging to these species, and various other harmful activities. According to Article 16(1), member state authorities may make or grant exceptions from the strict protection required by Article 12 when three conditions are met: (1) the action concerned (e.g, the hunting of a number of wolves) is for one of the purposes listed in Article 16(1); (2) there is no other satisfactory means of achieving the purpose involved; and (3) the action will not jeopardize the achievement or maintenance of a ‘favourable conservation status’ of the population concerned. The full text of Article 16(1) is as follows:

Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15 (a) and (b):
(a) in the interest of protecting wild fauna and flora and conserving natural habitats;
(b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property;
(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment;
(d) for the purpose of research and education, of repopulating and re-introducing these species and for the breedings operations necessary for these purposes, including the artificial propagation of plants;
(e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.

Of course, to appreciate the significance of the EU Court’s ruling for the application of the Habitats Directive to wolves and other strictly protected species it is best to read it carefully yourself. Below, however, I share some preliminary thoughts that occurred to me when reading it.

(1) The objective(s) of any Article 16(1)(e) derogation must be clearly identified

The Court now expressly affirms this position, which already seemed to follow from the text of Article 16(1) – after all, how could a member state demonstrate the absence of satisfactory alternatives (a condition applicable to all derogation grounds in Article 16) if it isn’t clear what purpose the derogation serves?

(2) Article 16(1)(e) is not a catch-all provision, but a last resort. Derogations can only be made for purposes not addressed in Article 16(1)(a)-(d)

This concerns a big interpretive question. According to a restrictive interpretation, which the Court now appears to affirm in its ruling, Article 16(1)(e) only covers purposes which are not yet covered by grounds (a)-(d). For instance, killing large carnivores to prevent damage to livestock, pets or other property would not be covered by ground (e) because it is already provided under (b). Furthermore, to claim that 16(1)(e) can be used to prevent minor livestock damage could be seen as inappropriately circumventing the limitation of 16(1)(b) to prevention of “serious” damage to livestock or other property. Following the Court’s restrictive interpretation, Article 16(1)(e) could thus only be used to allow derogations serving private interests other than damage prevention. This covers recreational hunting. (Incidentally, the Court’s case law on the Birds Directive’s equivalent derogation clause has so far precisely only condoned its use for recreational purposes!) According to an alternative, more liberal interpretation (which the Court now seems to say is incorrect), Article 16(1)(e) is a catch-all provision which can justify derogations for basically any objective which member states deem appropriate. (This is the approach taken in Bern Convention guidance on the Convention’s equivalent derogation clause.) According to this reading, preventing minor property damage through an Article 16(1)(e) derogation, to revisit this example, would not be viewed as an invalid circumvention of the requirements of 16(1)(b), for the reason that 16(1)(e) sets out a number of additional requirements or safeguards. In other words, if this second interpretation would have been correct, then in terms of the objectives that may be pursued by Article 16(1)(e) derogations, almost anything goes – thus including increasing tolerance, reducing poaching, protecting dogs from wolves, and so on. The AG Opinion opted for this second, liberal reading, but the Court takes a different view.

(3) ‘Tolerance hunting’ can in theory be based on Article 16(1)(e), but only under very strict conditions which will be hard to meet in practice

A central question in this case was to what degree Article 16(1)(e) can serve as a basis for wolf hunting the purpose of which is to increase tolerance amongst the local human population and therewith reduce illegal killing of wolves. The Court holds that such ‘tolerance hunting’ which has as a purpose the maintenance or improvement of the conservation status of the wolf population involved, can in theory be based on Article 16(1)(e). (One could argue that Article 16(1)(a) already provides a basis to do so, but the Court clearly takes a different position.) The ruling does confirm, however, that the conditions under which a derogation to allow such hunting can be based on Article 16(1)(e) are so strict that they will be difficult to meet in practice.

(4) Evidence is required that the derogation is a suitable means for achieving the objective(s)

Once a suitable objective is identified, the member state planning to issue an Article 16(1)(e) derogation must base this derogation on evidence that the proposed action (e.g. killing a number of wolves) is a suitable means for achieving the objective in the first place. Applied to the present case, according to the Court, the competent member state authority needs to support, on the basis of rigorous scientific data, the hypothesis that the hunting for population management purposes would reduce illegal hunting to such an extent that it would have a net positive effect on the conservation of the wolf population. (Applied to the present underlying Finnish dispute, the Court observes that apparently in that case, hunting for management purposes led to the killing of 13 or 14 more wolves than would have been killed as a result of poaching, and drily concludes that these data appear to suggest that the derogation permits in question are not capable of achieving their objective of combating poaching in the interests of protecting the species – but it is ultimately up to the national judge to determine this.)

(5) Evidence is required that there is no other suitable means of achieving the objective(s)

This is, of course, a well-established condition appearing in Article 16(1) itself, the importance of which has been stressed by the Court on various occasions, and which indeed appears a key legal bottleneck with regard to authorizing wolf hunting on the basis of Article 16(1). The Court highlights the need for convincing evidence, based on scientific information, showing why the sole means of achieving the objectives relied upon in support of the derogation permits was to allow the hunting of a particular number of wolves. All other possible options must have been envisaged and rejected, and the reasons why clearly stated. This is fully consistent with earlier Court jurisprudence. The Court also stresses that the mere existence of illegal hunting and problems encountered in curbing such illegal hunting cannot release a member state of the obligation which it has in the first place of controlling activities that are illegal under the Habitats Directive.

(6) Strict interpretation of Article 16(1)(e)’s specific requirements

The requirements that are specific to Article 16(1)(e) are to be interpreted restrictively, again in accordance with broader Court jurisprudence. We are talking here about the string of conditions from “strictly supervised conditions” through “selective basis” to “limited numbers”.

(7) FCS at various levels. There is scope for approaches at transboundary population level amongst EU member states, but unclear under what conditions

The Court also addresses the big question at what level(s) conservation status is to be assessed and a FCS achieved. Although it does so in a manner that leaves some questions unanswered, it does provide further clarity and, in particular, clarifies that there is scope, in principle, to look at conservation status at the level of transboundary populations shared by various EU member states. And most wolf populations in Europe are shared between two or more countries. According to the Court, in principle, conservation status and the impact of derogations thereon must be assessed (1) on the scale of the territory of the member state involved, or, (2) in member states straddling more than one biogeographical region, the scale of the biogeographical region in question within the member state, or, (3) when the natural range of the species requires it and as far as possible, on a transboundary level. According to the ruling, there is no scope for focusing on the transboundary population insofar as that population extends into non-EU member states (Finland-Russia, Sweden-Norway). What the conditions are precisely for focusing on the transboundary population level is left unclear in the ruling. In this regard, the Opinion of the AG expressly also did “not prejudge whether or not a Member State can establish that the population in question is at a favourable conservation status, where its natural range straddles the territory of several Member States, by proving that it is at that status at the level of the transboundary area concerned,” with a footnote stating that the 2008 LCIE carnivore guidelines (endorsed by the European Commission) “advocate such an approach and highlight the importance of cooperation between States for the purpose of managing populations of large carnivores.” In addition to the preceding considerations, the ruling asserts that it is generally necessary, when applying Article 16(1), to assess a derogation’s impact also at the level of the local population of the species involved – inter alia in light of the cumulative effect of various derogations on the conservation status at national or transboundary level. The Court also asserts that attention must be paid to the dynamics and social stability of the population involved.

(8) A role for management plans

In connection with the requirement that derogations may not adversely affect conservation status, the Court highlights the role that can be played in this regard by management plans and by the determination of maximum numbers of animals that can be killed without adversely affecting conservation status.

(9) Precautionary principle

In cases of uncertainty, the precautionary principle must be applied. In particular, when, after assessing the best available scientific information, uncertainty remains regarding the question whether a prospective derogation would or would not be harmful to the maintenance or recovery of a population of a threatened species in a favourable conservation status, the member state involved must refrain from issuing the derogation.

(10) Derogations when conservation status is unfavourable

The Court reiterates its ruling in the first Finnish wolf case, in that a derogation may exceptionally be permissible when conservation status is not (yet) favourable, if the derogation’s effect is neutral in terms of the species’ conservation status. The ruling stresses the exceptional nature of such derogations, and that the precautionary principle must be applied in case of uncertainty.

Summing up:

The Court expressly confirms that the hunting of wolves (including ‘tolerance hunting’) can in principle be based on Article 16(1)(e), but makes clear at the same time that the conditions to be met are very restrictive. This is also of relevance for other large carnivores and other strictly protected species listed in Annex IV of the Habitats Directive.

There is scope, in principle, for assessing the impact of a prospective derogation on conservation status at the level of a transboundary population as far as EU member states are involved, although the conditions under which this may be done remain unclear. The assessment must also consider the impact on the population at a local level.

Regarding the controversial Finnish wolf hunting that led to this ruling by the EU Court, whereas it is formally up to the national judge in the underlying Finnish case to determine this, the EU Court leaves little doubt that the wolf hunting under scrutiny falls severely short of meeting the various conditions.

Further reading:

The text of the judgment is available here.

A more elaborate analysis of the legality of wolf hunting under European law is forthcoming in the following article:
A. Trouwborst & F.M. Fleurke, ‘Killing wolves legally – exploring the scope for lethal wolf management under European nature conservation law’, Journal of International Wildlife Law and Policy (in press)

02/05/2019

Restoration of protected lakes under climate change: what legal measures are needed to help biodiversity adapt to the changing climate? The case of Lake IJssel, Netherlands

Throughout the world, lakes are facing deterioration due to intensive economic use. Climate change is exacerbating this situation. The only way forward is through implementing massive ecosystem restoration and connectivity policies, adjusted water management, and policies aimed at assisted colonization of endangered species. Current international and EU law do not explicitly require such policies to be developed and implemented, at least not in a legally binding way. In order to discover the legal prerequisites that facilitate the adoption and implementation of climate change adaptation measures for lakes, it would be good to have a look at some of the current best practices. One interesting example of such best practices is Lake IJssel (IJsselmeer) in the Netherlands, a protected lake under the Ramsar Convention and the EU’s Natura 2000 framework. In this blogpost, I will have a closer look at the adaptation policies in place for this lake with the aim to discover the legal conditions that have to be met for the adaptation policy to be effective. This case study is part of a bigger paper on this topic that was presented at an international conference at the University of Tehran on 14 April 2019, available here.

The creation of Lake IJssel

Lake IJssel (IJsselmeer) only became an inland fresh water lake in 1932, when the former Southern Sea (Zuiderzee) was closed off from the North Sea through the construction of a dam, called the Closure Dam (Afsluitdijk).^[1] Originally, this was a sea arm, part of the estuary of the IJssel and Vecht rivers consisting mainly of marshes and shallow salt and brackish tidal waters. The sea arm was closed off from the North Sea in order to end regular floods that were occurring in the area and to create new agricultural lands to improve food security. After the construction of the dam, parts of the new lake area were reclaimed and converted into land. This land was not only used for agriculture, but also for new cities in order to reduce population pressures in the nearby Amsterdam urban area. The remaining water area became a series of interconnected inland lakes, all of which are now protected areas under both the Ramsar Convention and the EU Wild Birds and Habitats Directives.^[2] Lake IJssel also became the Netherlands’ most important fresh water reservoir for drinking water and agricultural irrigation. It is the biggest fresh water area in northwestern Europe.

Lake IJssel’s poor conservation status exacerbated by climate change

Many of the species and habitat types for which this lake has been designated under the EU Wild Birds and Habitats Directives are not in a favourable conservation status, as required by these important EU biodiversity instruments.^[3] There are several reasons for this. First, and foremost, the transition from this area from a coastal marshland area into an artificial fresh water lake had severe consequences for the naturally occurring ecosystems. A new natural equilibrium has not been reached yet. The water of the lake has excessive quantities of sediments and is increasingly low on nutrients and marshes are disappearing. Over-fishing and increasing pressure by recreation, combined with active human manipulation of water levels to allow for intensive farming and urbanization have turned the lake basically into a big tub with muddy, empty water. The number of fish and other water organisms have declined tremendously, as has the number of birds. Climate change is exacerbating this already poor situation through:^[4] increasing water temperatures (leading to reduced oxygen levels and increased harmful algae blooms), increasing intrusion of alien invasive species (such as the quagga mussel, which affects natural algae and native mussel populations, as well as power and water treatment infrastructure), increasing peaks both in low water levels caused by droughts and high water levels caused by increased precipitation and increased river water run-off, bigger impact of several chemicals, such as phosphates from agricultural run-off in case of high water situations, and chloride from upstream salt mines in France in case of low water levels in summer, bigger impacts from recreation due to longer recreation seasons, increased flood risks due to accelerated sea level rise, which will make it increasingly difficult to flow off river water into the (higher) North Sea.

Legal requirement to restore the degraded Lake IJssel

Lake IJssel was designated as a wetland of international importance under the Ramsar Convention in 2002 and as protected area under the EU Wild Birds and Habitats Directives’ Natura 2000 network in 2010. The EU Directives contain much stricter legal obligations than the Ramsar Convention and have much more legal force through the fact that EU legislation is directly binding under domestic law of the EU Member States and through an enforcement mechanism through the Court of Justice of the EU. As a consequence, the Ramsar Convention has lost much of its relevance for those areas that have also been designated under the EU’s Natura 2000 network (which is the case for all Ramsar sites in the Netherlands).^[5]

For areas designated under the EU Wild Birds and Habitats Directives, conservation goals need to be set, aimed at the specific habitat types and species for which these areas have been designated. As most of the habitat types and species for which the Lake IJssel has been designated under the Natura 2000 network are not in a favourable conservation status, many conservation goals aim at increased populations or at increased acreage for certain habitat types. The latter can only be achieved through restoration, hence restoration is a legal requirement for Lake IJssel. In order to comply with this requirement, the management plans for the lake have adopted a wide range of restoration actions, some of which focus on the climate change related measures discussed in this paper (ecosystem restoration and connectivity, adjusted management, assisted colonization). These will be discussed below. It should be noted that the management plans for Lake IJssel do not just focus on nature conservation, but on all relevant environmental issues. A range of legal frameworks apply to the lake, partly stemming from the EU, such as on water quality and flood management, partly from domestic level, such as on polluted water soils and spatial planning. Furthermore, all of these plans are part of a broader development policy for the Lake IJssel area, called ‘Agenda Lake IJssel area 2050’, covering not just nature conservation, but also water safety, (drinking) water supply, water quality, fisheries, sustainable energy, infrastructure and transport, sand  extraction, landscape conservation, culture, recreation and tourism.^[6]

Restoration plans for Lake IJssel

The first phase of the plans, which runs from 2017 until 2023, primarily aims at stopping the decline in quality and quantity of habitat types and species. To achieve that, the current plan has five main goals: improvement of marshes on the edges of the lake for breeding reed birds, creation of new sandy breeding areas for water birds that breed on sandy beaches, improvement of availability of food for birds, improvement and enlargement of certain habitat types, and more space and tranquility for birds.^[7]

Most, if not all of these goals align with the climate change related adaptation measures that are generally considered important, such as restoration and connectivity, and adjusted management. It is remarkable, though, that climate change is not mentioned a lot in the various documents detailing the restoration requirements for Lake IJssel. I assume that this is because of the already poor conservation status that requires urgent action even without climate change.

The following table lists some of the restoration measures that contribute to climate change adaptation for the lake (despite the fact that they were not specifically proposed with that focus).^[8]

Assisted colonization is not specifically addressed in the management plans. Yet, to some extend, this measure is relevant, although not connected to climate change. In the 1980s the Eurasian otter became extinct in the Netherlands, mostly due to water pollution in the previous decades. The species, however, was reintroduced and now is back in a viable population in the Lake IJssel area. Furthermore, some of the restoration measures do aim to facilitate the natural relocation of species that were not present in the area before. The latter is particularly true for the white tailed eagle that has colonized the area and has been breeding here since 2006. The artificial fish migration river mentioned above helps salmon and other migratory fish to recolonize the lake and the rivers feeding the river. The assisted relocation of soil disturbing fish species from another part of the area to the lake is considered with the aim to improve the quality of the water soil.

Enabling factors for the restoration plans for Lake IJssel

In this section, I will deal with some important enabling factors that determine the success of the plans sketched above: the available financial budget, the role of the various authorities and other stakeholders involved, and the the role of the general public.

Financial budget: The measures discussed above, go at a cost. It is, therefore, important to adopt a multi annual budget. Otherwise, the risk exists that the plans are not executed, or that implementation stops mid-way. In the restoration plans for the Lake IJssel, implementation costs for each of the measures proposed has been included. The estimated budget consists of two elements: costs for construction or establishment of the restoration measures (once off costs), and costs for the first ten years of maintenance of the restoration measures. The total amount of once off implementation costs is between 630 and 1,060 million euro plus between 41 and 89 million euro for maintenance costs for the first ten years.^[9]

The role of the various authorities and other stakeholders involved: The governance structure of Netherlands can be characterized as a decentralized unitary state. This means that central government involves the provinces, municipalities and water districts in the formulation and execution of its policies.^[10] Hence, consensus building is considered to be of vital importance and the Netherlands has a long tradition of always looking for consensus among all those involved. This tradition dates back to early coastal defense and land reclamation activities around 1200, so even predating the establishment of the Dutch State: such activities were only possible with the collaboration of everyone, and, thus through balancing everyone’s interests. This has led to the enactment of laws that have a subtle, and somewhat complex, system of joint decision-making on such topics as water management, nature conservation, and spatial planning. As a consequence, many government bodies are involved in the implementation of the restoration plans for Lake IJssel, as follows. Central government is responsible for coastal and flood defenses that are of national importance (i.e., all coastal defense systems and flood defense systems of the main rivers), as well as for complying with EU-law requirements (vis-à-vis the European Commission). Provincial governments are responsible for nature conservation, and for coordinating water management and spatial planning. Water district boards are responsible for water management (in a broad sense, including water related nature conservation), and municipal governments are responsible for local spatial planning. As the Lake IJssel area is located within four provinces, has 32 municipalities and six water districts, and since five central government ministries are involved in the broader development plans of the area, intensive collaboration among all of these actors is in order. Such collaboration is coordinated by the Minister of Infrastructure and Water. Also involved in this process are non-governmental stakeholders, such as (agri-) businesses and environmental NGOs. Environmental NGOs actually play an important role, as several NGOs own property within the protected areas.

The role of the general public: Local residents, businesses and NGOs are also involved through the regular administrative procedures that need to be followed with all government decision-making (at all levels) and that require effective public participation and access to justice. Hence, there are public hearings and other forms of public participation, and all interested parties have the right to go to court. Thanks to the intensive collaborative decision-making processes aimed at reaching consensus (as sketched above), there, generally, is broad support for the plans once they are adopted. Nevertheless, every administrative decision that is taken to implement the restoration plans, can end up in court. Often, court cases focus on the question whether a certain decision is in compliance with EU law, for example with the EU Wild Birds and Habitats Directives.

Assessment of the Lake IJssel restoration plans

The restoration measures included in the first management plan for Lake IJssel are important first steps to bring the ecological quality of the lake back to an acceptable level. Species and habitat types that are in a favourable conservation status are much more resilient to climate change than species and habitat types that are in a poor condition. The measures aimed at increased connectivity, such as the creation of a fish migration river and of new islands in the lake for the sake of nature are spectacular and have fascinating results even within the first few years after these measures were taken. It is also clear, however, that much more is needed to make the area completely resilient to climate change. Especially those measures aimed at restricting harmful human activities still need to be taken. So far, only some preliminary measures aimed at regulating commercial fishing and recreation were adopted. More restrictions, especially for commercial fishing are considered necessary, which requires redistribution of existing fish permits and closing of certain parts of the lake for fishing. More drastic limitations on shipping and agriculture will follow from restoring natural water levels. Creating more connections with the sea, between the various parts of the lake area, and with the rivers feeding the lake, would also greatly enhance the resilience of the area, but is considered to be risky from a water safety perspective. The current approach of setting small steps towards a gradual more natural ecosystem seems effective for now, but we have to wait and see whether this approach will still work when tough decisions need to be taken that are costly and will have clear negative economic side effects.

07/11/2018

Bilateral treaties and corporate impunity: the recent developments of the Chevron Ecuador case before the Permanent Court of Arbitration

By Anna Berti Suman (TLS)

In December 2016, we published a blog post on the Chevron’s Ecuador ‘saga’, presenting the case as an example of the failure of the global environmental justice system. We presented five different scenarios of the battle for justice that since 1993 the Ecuadorean indigenous plaintiffs fight against the Chevron oil giant. Among these fronts, we here zoom in on the scenario that sees Chevron Corporation and its subsidiary Texaco Petroleum Co. against the Republic of Ecuador, the so-called ‘Chevron III’ case [1]. The case was initiated in 2009 by the company under the U.S.-Ecuador Bilateral Investment Treaty (BIT) before the Permanent Court of Arbitration in The Hague [2]. Chevron requested the arbitral panel to declare the State of Ecuador (through Petroecuador, the oil public firm part of the Ecuadorean consortium in which Texaco operated) as the exclusively liable entity for any judgment issued in the Ecuadorean litigation, Chevron vs. Aguinda. Specifically, the arbitral panel was asked to invalidate the $ 9.5 billion dollars judgement rendered against Chevron in Ecuador in 2011 that found the company guilty for its oil dumping in the Ecuador’s Amazon region where Texaco (later acquired by Chevron) operated between 1964 and 1992. The judgement, issued in 2011 by the Ecuadorean Supreme Court, was recently confirmed by the Ecuadorean Constitutional Court [3]. Chevron’s argument is based on two grounds: first, the company lamented the violation of the U.S.-Ecuador BIT inasmuch as the State of Ecuador did not grant a fair trial to the company in the Ecuadorean judgment. In addition, Chevron defended that it was released from any liability by the Republic of Ecuador by signing an agreement with the State in 1998 absolving the company of any future responsibility for its past operations in Ecuador.

On August 30, 2018, the Permanent Court of Arbitration released an award in favour of Chevron, finding that the Republic of Ecuador violated its obligations to protect U.S. companies under the U.S.-Ecuador BIT and international law. The arbitral panel said that the 2011 Ecuador Supreme Court’s ruling had been obtained through fraud, bribery and corruption, thus violating Chevron’s right to a fair trial in Ecuador. The tribunal consequently held that the company is not obliged to comply with the $9.5 billion judgment [4]. In occasion of the Arbitration Court’s decision, Pablo Fajardo, lawyer of the Union of Affected People by ChevronTexaco (UDAPT) representing the 30.000 victims of the Chevron’s oil contamination, and Justino Piaguaje, President of the Secoya Indigenous people, visited Tilburg University. In a seminar organized by Professor Jonathan Verschuuren and Anna Berti Suman at Tilburg Law School on October 26, the guests discussed the Chevron-Ecuador case in light of the recent judgement, reflecting on the applicability of the award against the Ecuadorian plaintiffs and on the broader questions that such an award raises. Letty Fajardo Vera and Suzanne Hagemann, spokespersons of the UDAPT respectively in the Netherlands and in Switzerland, and Charlie Holt, legal counsel for Greenpeace International in Amsterdam, joined the seminar as discussants.

Mr. Piaguaje introduced the participants to the reality of life ‘on the side’ of the oil contamination left by Chevron and what this means not only for human health but also for the preservation of the unique indigenous culture and lifestyle. Mr. Fajardo continued the discussion with a focus on the legal questionability of the award. From a strictly legal point of view, Fajardo stressed that the allegedly violated U.S.-Ecuador BIT was signed on August 27, 1993, and entered into force on May 11, 1997, which is five years after the termination of Texaco’s operations in Ecuador. However, the arbitral panel applied the BIT retroactively to facts occurred prior to its entry into force. Secondly, it is pretentious that an arbitral panel can affect the Ecuadorean Aguinda ruling, because it cannot have any jurisdiction over the Aguinda plaintiffs that did not even appear in the arbitral trial. In addition, the alleged release from responsibility granted to the company by the Ecuadorean government when the company terminated its operations in Ecuador only regards government’s claims and not private parties’ claims like those of the Aguinda plaintiffs, as also stated in the 2011 Ecuadorean judgment [5].

The recent development of the case inspired a discussion on a number of aspects. First, the stand of the Permanent Court of Arbitration vis-à-vis victims of environmental crimes has been questioned.  As Fajardo stressed, it is inadmissible for an arbitral panel to order a State to invalidate a judgment issued in a judicial process between private individuals and ratified by all national judicial instances. The award puts the commercial interests of companies before the human rights of the affected communities. The risk that bilateral treaties may act as a shield protecting transnationals from accountability for human rights violations emerged. In addition, the ruling clearly undermines the sovereignty of the Ecuadorean State and its judicial independence. By asking Ecuador to invalidate the 2011 judgment, the arbitral tribunal is compelling the State to violate its constitutional norm, to disrespect the independence of functions, and to jeopardize the human rights of the Ecuadorian citizens. Overall, the dangerous precedent that this arbitral decision may set was manifested. As a matter of fact, the case risks to become a precedent for releasing from responsibility companies that, with the complicity of states, commit environmental crimes against human beings. The award represents a failure or lack of environmental justice in a system that appears rather dominated by corporate impunity.

Photo credits: seminar photos by Letty Fajardo Vera & UDAPT (bottom photo showing Pablo Fajardo, Charlie Holt, and Justino Piaguaje); Cuyabeno rainforest photo by Jonathan Verschuuren

[1] PCA Case No.2009-23, Chevron Corp. and Texaco petroleum Co. vs. the Republic of Ecuador.

[2] See Chevron’s Notice of International Arbitration Against Government of Ecuador.

[3] Case No. 174-2012, verbal proceeding No. 174-2012, Maria Aguinda Salazar y otros v. Chevron Corporation, Quito, November 12, 2013.

[4] For more information on the case see A universal obligation of enforcing environmental justice? The Chevron-Texaco case as an example of the actual system’s failure.

[5] Ruling of Presiding Judge Nicolas Zambrano Lozada, Provincial Court of Sucumbíos, 14 February 2011, pp.34, 176.

14/09/2017

Understanding and Enhancing the Contribution of International Law to Lion Conservation

As one of the world’s most iconic and charismatic megafauna, the lion, Panthera leo, is a species whose conservation attracts international concern from conservationists and the global public alike. However, lion range and numbers have declined markedly over the last two decades.

In a recent publication in the journal Nature Conservation, two members of the Tilburg Environmental Law Team (Arie Trouwborst and Melissa Lewis) collaborated with biologists and social scientists from the University of Oxford’s Wildlife Conservation Research Unit  (WildCRU) to assess the present and potential future role of international wildlife treaties in lion conservation.

Lionesses, Kruger National Park, South Africa (photo: M. Lewis)

Like other species of large carnivores, lions present a special set of conservation issues from a legal perspective due to their great spatial requirements, elevated human-wildlife conflict potential, and role as both keystone and umbrella species. For these reasons, and because of the transboundary nature of many lion populations and some of their threats, international law plays a distinct role.

Lion conservation has featured prominently on the agendas of certain wildlife treaties – including the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and, more recently, the Convention on the Conservation of Migratory Species of Wild Animals (CMS). In October this year, for instance, Parties to the latter Convention will decide whether to list the lion on one of the CMS’s appendices, and will further consider the adoption of several draft decisions of significance for lions and other African carnivores. Although sometimes less obvious, a range of other treaties also play a role in the endeavor to conserve the world’s remaining lion populations. For instance, 39 of the sites that are currently designated as Wetlands of International Importance under the Ramsar Convention, and 18 of the areas that have been designated as World Heritage Sites under the World Heritage Convention, are of actual or potential significance to lions.  A myriad of regional instruments are also relevant – examples including the African Convention on the Conservation of Nature and Natural Resources, the SADC Protocol on Wildlife Conservation and Law Enforcement, the various treaties establishing transfrontier conservation areas (TFCAs), and even the Bern Convention on the Conservation of European Wildlife and Natural Habitats.

Lion, Kruger National Park, South Africa (photo J. Lewis)

In this paper, we identify not only a substantial body of relevant international wildlife law, but also a significant potential for enhancing these instruments’ contribution to lion conservation. We argue that the time is right to invest in such improvements, and we provide both general and treaty-specific recommendations for doing so. With the 2017 CMS Conference of the Parties fast approaching, the paper’s support for augmenting this Convention’s role in lion conservation is especially noteworthy. The paper concludes that: 

“Given the fragmented collection of treaties which currently apply to lions and the absence of adequate international instruments and/or institutions for lion conservation in at least portions of the species’ range, an important role appears, in principle, to be reserved for the CMS, both in terms of coordination and gap-filling. Listing lions under the Convention would be a logical step in this regard … [and] would both signal the need to develop more elaborate species-specific frameworks for lion conservation and sustainable use and increase the avenues available for achieving this.”

It further provides recommendations for making optimal use of the Ramsar and World Heritage Conventions and TFCA agreements in sites of importance to lions; outlines possibilities for adjusting CITES’ restrictions on the trade in lions and their parts; and emphasizes the importance of maximizing range states’ participation in, and compliance with, wildlife treaties, and of promoting strategies which involve the local people who live alongside lions.

Arie Trouwborst, Melissa Lewis, Dawn Burnham, Amy Dickman, Amy Hinks, Timothy Hodgetts, Ewan A. Macdonald & David W. Macdonald (2017) “International law and lions (Panthera leo): understanding and improving the contribution of wildlife treaties to the conservation and sustainable use of an iconic carnivore“. Nature Conservation 21: 83-128.

28/08/2017

Natural Visions: The Aesthetics of Environmental Law

(Professor of Environmental Law, University of Tasmania; Tilburg University’s Global Law Visiting Chair 2017)

Among the most reproduced photographs in the world are NASA’s first images of Earth — most famously the iconic Blue Marble image taken by the Apollo 17 crew in 1972 from a distance of 45,000 km from the planet’s surface. It profoundly moved people with a stunning picture of a beautiful yet vulnerable planet, and helped propel the global environmental movement.^[1]

Blue Marble, 7 December 1972, NASA Apollo 17 mission.

Aesthetics can touch our most visceral feelings about the natural environment in ways that technical data or expert reasoning cannot easily conjure. Majestic scenery, charismatic animals, and serene landscapes are among the perceived glories of natural environments that motivate people to care for them. An Italian and German may not understand one another’s tongue but can share admiration of a sublime mountain range or exquisite bird of paradise. Such affection can translate into stronger legal status for such places and species, such as creation of a national park or protection of treasured wildlife.  In Tasmania, where I live, nature’s beauty of this genre is never far away.

Aesthetic values have ostensibly informed numerous environmental laws. Great Britain’s National Parks and Access to the Countryside Act 1949 was established ‘for the purpose of preserving and enhancing the natural beauty’ (section 5(1)). The goals of the United States’ National Environmental Policy Act 1969 include ensuring ‘esthetically and culturally pleasing surroundings’ and preserving ‘important historic, cultural, and natural aspects of our national heritage’ (42 U.S. Code s. 4331). Internationally, the World Heritage Convention of 1972 safeguards ‘natural areas of outstanding universal value from the point of view of … natural beauty’ (article 2). In domains inhabited by people, municipal land-use planning commonly incorporates aesthetic criteria to protect architectural gems, historic streetscapes and bucolic countryside.

But we should not infer that aesthetic values are environmental law’s leitmotif – indeed quite the contrary. Scientific knowledge and economic values dominate rationalisations for environmental decisions. Arguments over how to deal with climate change or save endangered species are typically rationalised around the scientific evidence or economic costs and benefits. These criteria supposedly inject ‘objectivity’ and ‘neutrality’ into often deeply politicised disputes over the environmental impacts of developments. Public participation is another valorised input into environmental governance, as endorsed in most legislation and the Aarhus Convention; however, citizen participation (which can be a means to express aesthetic values) in practice is often managed for appearances in order to secure public acceptance of decisions already reached on other grounds.^[2]

Is aesthetics thus only to hold a minor place in environmental governance, and what issues must we address in defining its role? I believe that beauty and other aesthetic values should have a more prominent place here. While science and economics supply a variety of reasons to conserve nature, such as revealing its biodiversity values or economic benefits, these disciplines do poorly in emotionally engaging people with their environs. Abundant environmental science has struggled to leverage fundamental shifts to our environmental attitudes and practices, as evident in continuing deforestation, industrial development and pollution. A sense of place or other personal connection to an environment grows when its beauty, spirituality or other sensuous qualities uplifts one. Empirical research shows positive correlations between specific landscape or environmental features and human wellbeing.^[3] And individual well-being can lead to social change: as Aldo Leopold presciently observed, ‘we can only be ethical in relation to something we can see, feel, understand, love, or otherwise have faith in’.^[4]

Finding beauty in nature’s small stuff: Mycena interrupta, Blue Mountain View, Tasmania (photo: B. Richardson).

But any appeal to enrich legal governance with environmental aesthetics faces several challenges. Firstly, the aesthetic values that tend to captivate us are frequently associated with ‘specialness’ – perhaps a rare species or sublime landscape. But the ‘specialness’ benchmark has drawbacks: we should protect species before they become so endangered or rare as to move us, and pretty landscapes are not necessarily more ecologically important than a ‘mundane’ grassland or swamp. Even human-dominated landscapes punctuated by billboards and buildings, or golf courses and garbage dumps, can harbour wildlife adapted to living in our midst.^[5] If we are to leverage action through environmental aesthetics, we must find beauty or other aesthetic values more widely than just within ‘special’ enclaves.

Secondly, because of the common assumption that the human response to aesthetics is subjective rather than factual or rational, aesthetic judgements determined by the beholder rather than the object can be viewed as deficient. Colloquially, we typically call this bias ‘beauty being in the eye of beholder’. Some researchers identify a shared, cross-cultural preference for landscapes that resemble Homo sapiens’ evolutionary cradle, the undulating African savannah.^[6] Psychologists also identify a shared taste for fractal patterns in scenery, ‘featuring patterns that repeat at increasingly fine magnifications’ such as clouds, rivers and coastlines.^[7] But while an aesthetic sense is surely a universal human trait, it is both personality- and culture-bound, with different artistic expressions and preferences found between and within cultures: a lover of Van Gogh’s delicate Irises might easily spurn Mark Rothko’s austere No.61 (Rust and Blue).

Trashing nature’s beauty: somewhere in Tasmania (photo: B. Richardson).

Furthermore, in our urban demography we often aesthetically engage with nature not directly but vicariously — through David Attenborough-narrated films, lavish coffee-table books or soothing nature sounds CDs. Artistic representations of landscapes, flora and fauna are among humankind’s earliest cultural expressions, such as the 20,000 years old Palaeolithic paintings adorning the Lascaux Caves in France and Aboriginal rock art in Australia of even older vintage. The arts thus mediate our access to environmental aesthetics. Natural beauty has become an essential ‘resource’ for activist organisations. In Tasmania, it was especially evident in Olegas Truchanas’ and Peter Dombrovskis’ sublime photographs to rally public interest in saving Lake Pedder and the Franklin River respectively from dams, ^[8] and again today to help conserve the imperilled Tarkine rainforests through the ‘Tarkine in Motion’ festival.^[9] While these examples tend to reinforce that ‘specialness’ bias, the arts are increasingly enlisted to conserve ‘ordinary’ nature; recent successful examples include the Tasmanian Land Conservancy’s ‘Poets and Painters’ (2016-17) and ‘Skullbone Experiment’ (2014) that engaged artists to educate the public about the ecological and aesthetic values of two of the Conservancy’s private reserves in relatively unimposing (but ecologically valuable) landscapes.^[10]

Further challenges with environmental arts include that they sometimes cater to an unrepresentative socio-economic demography (ie, urban, affluent, educated), thus missing the rural and poorer communities who often have more at stake directly in the environmental controversies. And some people might ‘read’ landscapes not for their beauty but for other aesthetic values such as having a spiritual connection, as in Aboriginal Dreamtime stories. Going beyond the ‘purview of the “landscape” of other received aesthetic categories of environmental perception’, Alan Braddock recommends an ‘eco-critical’ approach that emphasizes ‘environmental inter-connectedness, sustainability, and justice in cultural interpretation’ and reexamining canonical works to highlight ‘neglected evidence of past ecological and proto-ecological sensibility’.^[11] In other words, more diverse conceptions of environmental aesthetics can help address lacunae or biases, and respect art historian Simon Schama’s advice to recognise that landscapes have a socialised, layered history.^[12]

Strengthening community involvement in environmental art might attenuate some of the foregoing challenges. Here the emphasis shifts from the artistic representation of the natural world as an object of admiration to community engagement and dialogue with that world. This approach not only dovetails with the theory of ‘interested engagement’ in the aesthetics literature,^[13] but also environmental law’s commitment to public participation.^[14] Ecological restoration projects provide an interesting setting for these goals, as currently practised by Greening Australia in its Tasmania Island Ark initiative. Greening Australia has collaborated with the University of Tasmania’s College of the Arts to involve artists with regional schools and local townships in designing sculptures for placement in the landscape not only to support the community’s interpretation of the restored biodiversity but also to directly aid the biodiversity’s recovery by designing artworks that serve as ‘species hotels’ for birds, bats and other creatures.^[15] Another approach, used in the United States, was undertaken by the US Nature Conservancy in its restoration of a wetland in Illinois; it recruited citizens to be artists themselves — to draw, paint, photograph, or otherwise depict the restoration endeavour and its results.^[16]

Beauty is indispensable for our relationships with the natural environment and the laws we design to conserve it, helping people to move beyond a cold, instrumental relationship to one provoking affinity, curiosity, adoration and other intimacies. Artistic depictions of landscapes can influence their legal status, as Alice Palmer has investigated in her excellent analysis of the impact of aesthetics in World Heritage property listings including those in my own homeland of Tasmania where Peter Dombrovskis’ photographs of its southwest wilderness were used by the Australian government as evidence to support its nomination of this area for World Heritage status.^[17] Given the ineffectiveness of much environmental regulation and considerable insouciance by some about the Anthropocene, we need to re-think how to engage everyone in caring for the Earth and the legal means to leverage that engagement.

[1] R. Kelsey, ‘Reverse shot: Earthrise and Blue Marble in the American imagination’ in E.H. Jazairy (ed), Scales of the Earth (Harvard University Press, 2011), 10.

[2] S. Bedder, ‘Public participation or public relations?’ in B. Martin (ed), Technology and Public Participation (University of Wollongong, 1999), 169.

[3] R. Kaplan, ‘The nature of the view from home’ Environment and Behavior 33(4) (2001): 507; K. Williams and D, Harvey, ‘Transcendent experience in forest environments’ Journal of Environmental Psychology (2001) 21: 249.

[4] A. Leopold, A Sand County Almanac (Oxford University Press, 1949), xxvi.

[5] T. Low, The New Nature (Penguin, 2017).

[6] D. Dutton, The Art Instinct. Beauty, Pleasure, and Human Evolution (Bloomsbury Publishing, 2010), passim; J. Appleton, The Experience of Landscape (Wiley, 1975), 73-74.

[7] R. Taylor, ‘Fractal patterns in nature and art are aesthetically pleasing and stress-reducing’, The Conversation, 31 March 2017.

[8] T. Bonyhady,  ‘No dams: the art of Olegas Truchanas and Peter Dombrovskis’, in R. Butler (ed), The Europeans: E´migre´ Artists in Australia 1930 – 1960 (National Gallery of Australia, 1990): 236.

[9] ‘Artists return from threatened Tarkine wilderness – major exhibition installed in Hobart’, Media release, Bob Brown Foundation, 2017.

[10] J. Deeth, ‘The Skullbone experiment: a paradigm of art and nature’, Artlink, June 2014; H. Aird, ‘Poets and painters: new exhibition produces “extraordinary synergies”’, ABC News 28 July 2017.

[11] A.C. Braddock, ‘Ecocritical art history’ American Art (2009) 23(2): 24, 26.

[12] S. Schama, Landscape and Memory (Fontana Press, 1995).

[13] A. Berleant, Living in the Landscape: Toward an Aesthetics of Environment (University Press of Kansas, 1997).

[14] B.J. Richardson and J. Razzaque, ‘Public participation in environmental decision-making’ in B.J. Richardson and S. Wood (eds), Environmental Law for Sustainability (Hart Publishing: 2006)): 165.

[15] Greening Australia, ‘Building hotels for Tasmania’s unique species’.

[16] S.K. Allison, Ecological Restoration and Environmental Change: Renewing Damaged Ecosystems (Routledge, 2012), 188.

[17] A. Palmer, ‘Legal dimensions to valuing aesthetics in World Heritage decisions’ Social and Legal Studies (2017): 1 at 8, DOI: 10.1177/0964663917698859.

21/08/2017

The Importance of International Wildlife Law and the Value of Multidisciplinary Collaboration in this Field

In the battle to halt and reverse the global biodiversity crisis, a crucial role is reserved for international legal instruments. An open-access viewpoint article in BioScience, written by an international assemblage of wildlife lawyers, conservation biologists and social scientists, highlights the importance of international law in wildlife conservation. The article explores the various ways in which treaties can contribute to conservation, as well as their limitations; and calls for both increased, strategic recourse to international wildlife law as a conservation tool, and further cooperation between lawyers and other conservation professionals. As the 21 authors conclude:

“With their long-term, legally binding commitments on a transboundary scale, international legal instruments can be important, sometimes indispensable implements in the conservation toolbox. Having explored why international wildlife law matters and what can and cannot be expected of it, we are convinced that by joining forces, lawyers and other conservation professionals can improve the contribution of international wildlife law to biodiversity conservation. There is much to be gained, partly by enhancing the legal framework itself but especially by seizing the many opportunities offered for advancing the effective application of the law as it stands. We hope that this article can be a useful step along this path.”

Multidisciplinary cooperation is also a key focus of the 18^th International Wildlife Law Conference, which will be held at Tilburg University in the Netherlands on 18-19 April 2018. This is reflected in the scheduled keynote addresses by international wildlife lawyer Michael Bowman (School of Law, University of Nottingham) and conservation biologist David Macdonald (Wildlife Conservation Research Unit, University of Oxford). The Tilburg Environmental Law Team strongly encourages law professionals/students with an interest in wildlife, as well as wildlife professionals/students with an interest in law, to consider participating in this event.

Arie Trouwborst, Andy Blackmore, Luigi Boitani, Michael Bowman, Richard Caddell, Guillaume Chapron, An Cliquet, Ed Couzens, Yaffa Epstein, Eladio Fernández-Galiano, Floor Fleurke, Roy Gardner, Luke Hunter, Kim Jacobsen, Miha Krofel, Melissa Lewis, José Vicente López-Bao, David Macdonald, Steve Redpath, Geoffrey Wandesforde-Smith & John Linnell, “International wildlife law: Understanding and enhancing its role in conservation“, BioScience 2017, doi:10.1093/biosci/bix086

09/04/2017

From ‘Natural Objects’ to Holders of Legal Rights: The Expanding Concept of Personhood in India

In 1972, Christopher Stone published one of the seminal articles in environmental legal thinking: ‘Should Trees Have Standing?’. Stone observed that the history of law has seen the gradual extension of legal personality, and accompanying legal rights, to entities to whom it had previously been unthinkable that rights should be granted. Although such entities have included various categories of human beings (such as women, children, and slaves), the boundaries of legal personality have also been stretched to include certain non-humans, such as corporations. From this foundation, Stone proceeded to construct an argument for the extension of legal rights to what had hitherto been ‘natural objects’. Later the same year, in his dissenting opinion in Sierra Club v Morten, US Supreme Court Justice William Douglas famously aligned himself with Stone’s position, asserting that ‘[c]ontemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation’. Nevertheless, it is probably safe to assume that, as had been the case in respect of other historically ‘rightless’ entities, the suggestion that rights be conferred upon nature initially struck many as being completely outlandish.

Fast forward almost half a century, and Stone’s proposal does not sit quite as uncomfortably as it might have when initially published. In the period since the early ‘70s, an abundance of environmental laws have emerged at both the international and national levels; and although it is not yet commonplace for states to bestow rights upon the environment (or components thereof), this practice is rapidly gaining traction in several jurisdictions. In 2008, Ecuador became the first country to include ‘rights of nature’ in its Constitution, including ‘the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes’, as well as ‘the right to be restored’. Then, in 2014 and 2017 respectively, New Zealand passed the Te Urewera Act and the Te Awa Tupua (Whanganiu River Claims Settlement) Act, recognizing a national park and a river to be legal entities, with ‘all the rights, powers, duties and liabilities of a legal person’.

Last month, India became the most recent country to grant rights to particular features of the natural environment – not through legislation, but rather through two public interest litigation cases decided by the High Court of Uttarakhand (for an overview of how the cases emerged, see here). This post provides a brief synopsis and critique of the two judgments and comments on their significance.

Judgment #1: Cracking open the door to personhood

River Ganga (Photo by Flickr user Roehan Rengadurai)

In the first judgment (Mohd. Salim v State of Uttarakhand & Others), the Court was of the view that the ‘extraordinary situation’ in which the Ganga and Yamuna Rivers ‘are losing their very existence’ requires that ‘extraordinary measures be taken to preserve and conserve’ these rivers. After noting the deep spiritual connection between Hindus and the Rivers Ganga and Yamuna, the Court cited several previous judgments (predominantly from India’s Supreme Court) in which the concept of legal personality and its extension have been considered. The Court paid particular attention to decisions holding that a Hindu idol/deity is a juristic person, capable of possessing its own property (which is managed on the deity’s behalf by a human guardian), being taxed, and suing as a pauper. It further emphasized that the concept of ‘juristic persons’ emerged to serve ‘the needs and faith of society’ and that ‘a juristic person can be any subject matter other than a human being to which the law attributes personality for good and sufficient reasons’. The Court proceeded to again stress the religious significance of the Rivers Ganga and Yamuna. Importantly, it also commented on the rivers’ role in supporting ‘both the life and natural resources and health and well-being of the entire community’ and pointed to provisions of the Constitution of India which require both the state and its citizens to protect the environment.

The Court ultimately held that ‘to protect the recognition and the faith of society’ and ‘preserve and conserve’ the Rivers Ganga and Yamuna, it was necessary to declare these rivers, ‘all their tributaries, streams, [and] every natural water flowing with flow continuously or intermittently of these rivers’ to be juristic persons ‘with all corresponding rights, duties and liabilities of a living person’. It further declared the Director of government’s NAMAMI Gange project, along with the Chief Secretary and Advocate General of the State of Uttarakhand, to be ‘persons in loco parentis as the human face to protect, conserve and preserve’ the rivers and their tributaries; and directed these persons to ‘uphold the status of Rivers Ganges and Yamuna and also to promote the health and well being of these rivers’. The Court stated that, in making this decision, it was exercising parens patriae jurisdiction (i.e. the jurisdiction to assume responsibility for the welfare of those unable to act on their own behalf), but did not elaborate upon this principle.

Judgment #2: Allowing more persons to enter the room

A mere ten days after its striking decision concerning the Rivers Ganga and Yamuna, the Uttarakhand High Court widened the ambit of legal personality even further to encompass ‘the Glaciers including Gangotri [and] Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls’, and declared several individuals to be persons in loco parentis of these entities in the State of Uttarakhand (Lalit Miglani v State of Uttarakhand & Others). This second judgment was penned by the same two judges as the first, but is considerably longer and, unfortunately, also considerably less coherent.

Yamunotri, Uttarakhand (Photo by Flickr user Hrishi Chandanpukar)

While the first judgment had hinged largely – albeit not exclusively – on the religious importance of the rivers in question, less weight was placed upon this aspect in the second judgment. In reaching its decision, the Court considered the significance of, and threats to, various features of the natural environment. It expressed concern that the Gangotri and Yamunotri Glaciers (from which the Rivers Ganga and Yamuna originate) are receding due to pollution and climate change; that the various natural parks in the State of Uttarakhand, which ‘function as lungs for the entire atmosphere’, are threatened by human activities; that the State’s forests are threatened by large scale deforestation; and that forest fires are polluting the environment and harming wild animals, whose habitat is also shrinking. Throughout its judgment, the Court quoted extensively from several publications, which discuss, inter alia, the biodiversity of the Himalayas; the importance of trees from religious, cultural, economic and ecological perspectives; and the need to deviate from traditional approaches to protecting nature by recognizing nature’s rights. Curiously, no extracts from Stone’s ‘Should Trees Have Standing’ appeared in the decision, despite Stone having advocated precisely the kind of expansion of legal personality that the Court undertook in this judgment. Nor were excerpts included from the dissenting opinion in Sierra Club v Morten, although the Court did refer to New Zealand’s Te Urewa Act as an example of a country having recognized the legal personality of a national park.

The Court additionally drew text from a variety of international environmental instruments, reproducing the 1972 Stockholm Declaration, 1992 Rio Declaration, and 1992 Rio Forest Principles in their entirety, and also quoting large portions of the 1982 World Charter for Nature and 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). References to forests in the 1997 Kyoto Protocol and 2007 Bali Action Plan were additionally mentioned. The Court drew no distinction between legally binding and non-binding instruments – indeed, several mistakes in the judgment (which, for instance, erroneously refers to the Kyoto Protocol as the ‘Kyoto Declaration’) suggest that its authors failed to fully appreciate the nature of India’s commitments under the various instruments they referred to. The Court also failed to explain why it considered this selection of instruments to be relevant in reaching its decision, though presumably its rationale was that they illustrate the existence of wide-scale agreement amongst states concerning both the importance of the natural environment and the concomitant need for environmental protection. Further, although none of the instruments go so far as to call upon states to bestow legal rights upon nature, doing so is conceivably one route through which to achieve environmental protection, and thereby respond to some of the exhortations/obligations that the instruments contain. That said, the list of instruments that the Court chose to cite is somewhat surprising – in both its inclusions and its exclusions. Amongst the instruments referred to in the judgment, CITES stands out as a particularly odd choice. While numerous CITES listed species inhabit Uttarakhand (examples including the snow leopard, Uncia uncia, and the snow orchid, Diplomeris hirsuta), the Convention requires only that states protect these species from overexploitation through international trade, not that they engage in broader in situ conservation efforts, such as the protection of natural habitats. Given that the Court’s eventual expansion of legal personality pertained to particular habitats, but not to individual species, the 1992 Convention on Biological Diversity (CBD) would seemingly have provided better support for the decision – especially considering that this Convention recognizes the intrinsic value of biodiversity, whereas CITES’ focus is strictly utilitarian. However, the CBD received no mention in the judgment. Nor did the 1971 Ramsar Convention on Wetlands of International Importance or the 1972 World Heritage Convention, despite the Court both recognizing the legal personality of wetlands and emphasizing the need to protect natural parks in the State of Uttarakhand (which include the World Heritage listed Nanda Devi and Valley of Flowers National Parks). Still further instruments that could have been referred to, but weren’t, include the 2007 Non-legally Binding Instrument on All Types of Forests, the Outcome Document of the 2012 Rio+20 Conference (‘The Future We Want’), the 2015 Sustainable Development Goals, and the 2015 Paris Agreement. The Court’s failure to consider these four relatively recent documents might be explained by its apparent reliance on the outdated book Documents in International Environmental Law (2^nd ed.: 2004) as its primary source of information concerning relevant international instruments.

As had the initial judgment regarding the Rivers Ganga and Yamuna, this second judgment referred to citizens’ Constitutional duty to protect the environment. It further stated that ‘[t]he Courts are duty bound to protect the environmental ecology under the “New Environment Justice Jurisprudence” and also under the principles of parens patriae’. It then provided a lengthy collection of quotes from judgments and journal articles discussing parens patriae – in particular, in the context of allowing states in a federal system to sue to prevent injury to the environment. What is remarkable about this collection, however, is that the texts cited discuss the origins and evolution of parens patriae in the United States’ legal system, and provide no explanation whatsoever of how this principle operates in Indian law.

Towards the end of its judgment, the Court stressed that ‘[b]esides our constitutional and legal duties, it is our moral duty to protect the environment and ecology’, and ‘to hand over the same Mother Earth to the next generation’. It stated further that ‘rivers, forests, lakes, water bodies, air, glaciers, [and] human life are unified and are [an] indivisible whole’; and that rivers and lakes have an ‘intrinsic right not to be polluted’, and rivers, forests, lakes, water bodies, air, glaciers and springs ‘have a right to exist, persist, maintain, sustain and regenerate their own vital ecology system’. In holding that these entities are legal persons the Court directed that their rights ‘shall be equivalent to the rights of human beings and the injury/harm caused to these bodies shall be treated as harm/injury to the human beings’. At an earlier point in the judgment, the Court had also commented that ‘[t]rees and wild animals have natural fundamental rights to survive in their natural own habitat and healthy environment’ – however, the rights of wild animals were not reasserted in the decision’s concluding paragraphs and, as noted above, the Court did not go so far as to recognize the legal personality of any of Uttarakhand’s native fauna.

Where to from here?

Whilst Indian law already obliges both citizens and the government to protect the environment, the legal significance of these two judgments is (as suggested by the title of Stone’s article) that litigation can now occur on behalf of certain features of the natural environment. Whether or not this enhances the environment’s protection in practice remains to be seen, although concerns have already been raised regarding the Indian government’s poor track record regarding environmental matters and the Court’s appointment of government officials as persons in loco parentis. As noted by Shivshankar, the second judgment did recognize the need for community participation (providing that ‘[t]he Chief Secretary of the State of Uttarakhand is also permitted to co-opt as many as Seven public representatives from all the cities, towns and villages of the State of Uttarakhand to give representation to the communities living on the banks of rivers near lakes and glaciers’), but failed to specify how community members will be chosen or what their precise role will be. The judgments have further been criticized for failing to unpack what these new ‘persons’ can sue for, who they can sue, and whether there are any breaches of duty in respect of which they themselves can be sued. As things currently stand, a great deal of uncertainty thus remains concerning the implications of their newly established personhood. It is further significant that, since they originate from a High Court judgment rather than the Indian Supreme Court, the orders only apply within Uttarakhand. This clearly dilutes their potential to contribute to the protection of transboundary entities such as the Rivers Ganga and Yamuna.

Asian Elephant, Uttarakhand (Photo by Flickr user Roshan Panjwani)

The judgments would also arguably have been of greater persuasive value for courts in other Indian states, as well as foreign jurisdictions, had their legal reasoning been more carefully developed. Nevertheless, the Court’s acceptance that the spiritual and ecological value of certain aspects of the natural environment, combined with the threats faced thereby and the duties enshrined in the Indian Constitution, constitute ‘good and sufficient reasons’ for attributing legal personality provides an important precedent for future expansions of personhood. Indeed, the Nonhuman Rights Project has already stressed the potential of this precedent to assist animal advocates in making the case for legal rights for nonhuman animals.

Regardless of the various difficulties that will inevitably arise in implementing the Court’s orders, at the very least they reflect an important conceptual shift away from humans’ traditional, anthropocentric notion of environmental management, which has thus far been largely unsuccessful in preventing environmental destruction. Decades before Christopher Stone suggested that nature might be afforded legal standing, Aldo Leopold posited that: ‘We abuse the land because we regard it as a commodity belonging to us. When we see land as a community to which we belong, we may begin to use it with love and respect.’ Recognizing that various aspects of the natural environment, rather than simply being things for us to use, are capable of holding legal rights is an important step towards embracing the latter perspective.

08/02/2017

Ecological Literacy and Restoration

(Professor of Environmental Law, University of Tasmania; Tilburg University’s Global Law Visiting Chair 2017)

In early 2015 my wife and I purchased 66 acres of wild landscape in our homeland, Tasmania, and set about ensuring its indefinite protection by putting a conservation covenant on the property title.  With this legal protection to “Blue Mountain View”, as we call our land, we joined other like-minded neighbours committed to safeguarding this beautiful niche in Tasmania’s Huon Valley. We have also since participated in some wildlife monitoring projects with environmental groups to better understand the local biodiversity and thereby facilitate long-term conservation planning.

Blue Mountain View, Tasmania (photo: B. Richardson)

Becoming an environmental steward with legal responsibility to protect and improve the ecological values of a small piece of our planet is a great privilege, providing exceptional opportunities to forge a more intimate relationship with, and knowledge of, the natural world. This experience reminds me of the writings of Harvard biologist Edward O. Wilson who hypothesized that human beings possess biophilic tendencies.^[1] Yet biophilia, like other affections, is unlikely to flourish if not nurtured. If our experience of nature is limited to desolate landscapes with few wildlife beyond the ubiquitous rats, pigeons and common weeds, we are unlikely to appreciate nature’s richness and beauty. Equally, if our daily lives are spent amidst car parks and shopping malls, we will hardly understand the complexity of ecosystems and the need to care for them. In our highly urbanized, consumer lifestyles, the impoverished opportunities for direct interactions with wild places are one of the principal obstacles to making environmental conservation a social priority.

My association with Blue Mountain View has enabled me to acquire much greater ecological literacy than I ever gained from just reading literature and watching nature films. I have come to learn much about the habits of rare or engendered species that inhabit it, such as Tasmanian Devils and Eastern Quolls, and develop a greater sensitivity to nature’s temporalities as observed from the fruiting and flowering of vegetation or the seasonal migration of birds.

Tawny frogmouth, Blue Mountain View (photo: B. Richardson)

But how can we engage the general public with the natural world so as to similarly build ecological literary, respect and affinity?  This is a multidimensional task of which environmental law can only play a part.^[2]

A key strategy must be community participation in ecological restoration, the practice of repairing historic or recent damage to landscapes and seascapes. The practice is evoked by the work of New York artist Alan Sonfist. He erected numerous monuments in cities around the globe to commemorate and “heal” their lost ecology. His archetypical work is “Time Landscape”, constructed over 1965 to 1978 in Manhattan in cooperation with the City Botanical Gardens. His “landscape” recreated the original indigenous vegetation of New York on an empty street corner in Manhattan, and the living artwork evokes the processes of nature reclaiming itself.  Serious ecological restoration, of course, must be tackled on a much grander scale.

Restoring nature is vital to defend against the upheavals of the Anthropocene. We shouldn’t assume that sustainability – the dominant goal of modern environmental law – is achievable using current environmental conditions as baselines for legal protections because those conditions are often too degraded to meaningfully sustain. Instead, attaining sustainability may also require some recapturing of prior ecological conditions – lands may need to be replanted with vegetation, fish stocks replenished, and landscapes cleansed of contaminants.

Southwest Tasmania’s world heritage (photo: B. Richardson)

The law must prioritise ecological restoration, a task that will require a major shift from current legal precedents. Major environmental legislation in most countries offers few provisions devoted to this task, mostly focusing on remediation of contaminated brownfields or former mines rather than restoration of entire ecosystems.^[3] Fortunately, the governance deficits are starting to be filled by some fascinating initiatives from non-state actors, namely environmental NGOs, community groups, farmers and Indigenous peoples, collaborating voluntarily to restore and rewild nature.^[4]

The examples include Gondwana Link, restoring a 1000 km stretch of Western Australia that suffered catastrophic land degradation from misguided farming. Began in 2002, the project aims to reconnect fragmented natural habitats to create a holistic ecological system, through outright purchase of high priority lands and conservation covenants on other properties that are then subject to various restorative interventions.^[5] In North America, the Y2Y project – denoting Yellowstone to Yukon – is using a similar approach to Gondwana Link, except over a bigger scale along the Rocky Mountains and involving more jurisdictions and actors.  In New Zealand, which has suffered among the world’s worst biodiversity loses – don’t believe the deceptive “100% Pure” slogan that the country advertises – restoration has been led by community groups sometimes in partnership with government land managers. They are creating huge fenced sanctuaries in which exotic vermin are removed to allow the remnant avifauna to regenerate.^[6] And in Scotland a charity called Trees for Life is restoring 230,000 hectares of the ancient Caledonian forest that was grazed and logged to near destruction several centuries ago.^[7]

Another approach, better suited to urban denizens, is called “reconciliation ecology”. The term was apparently coined by Michael Rosenzweig to describe restoration projects that benefit people by drawing them closer to their natural environs, including providing aesthetic and recreational benefits.^[8] Such reconciliation often takes place in urban areas to bring nature closely into people’s daily lives, such as expanded city parks, restored waterways, and green roofs. One outstanding example is “Zealandia”, a restored bird-rich sanctuary, located near the heart of Wellington, the capital city of New Zealand. Through reconciliation activities, people become more aware of their degraded environs, the opportunities to improve them, and thereby hopefully acquire greater ecological literacy.

‘Citizen science’ is another movement that touches on similar ideas but uses different methods. Citizen science projects involve lay people participating in environmental monitoring to help researchers understand environmental baselines and changes that can then feed into management actions including restoration. Citizen science taps into a valuable community resource while enhancing participants’ ecological knowledge and commitment. Citizen science projects include tracking marine plastic debris^[9] and counting birds.^[10] Advances in information technology, both in recording and sharing the data such as GPS and remote camera ‘trapping’, have greatly expanded opportunities for citizen science to recruit larger audiences of volunteers. I have been involved in one such project on Blue Mountain View recently.

Trees in heaven, Blue Mountain View (photo: B. Richardson)

But such community-based initiatives aren’t enough. Volunteerism may not be sustainable in the absence of reliable funding, may lack influence when confronted with uncooperative landowners, and may be undermined by antagonistic government policies and regulations that enable inappropriate economic developments. For instance, some Australian states have enacted recent legislative changes that make it easier for landowners to clear native vegetation.^[11] Environmental lawyers must advocate ways for governments to play a more positive role, while preserving community initiative. Such roles could include more generous seed funding and tax breaks, coupled with reforms to land use planning and inclusion of stewardship obligations in all property tenures. Legislative mandates for sustainability should also be redefined to include obligations for restoration and reconciliation where existing ecological baselines are too degraded.

Of course, social change will require more than just law. The arts can also play a special role in enlivening people’s imagination and building their commitment to restoring nature. German artist-entrepreneur Dirk Fleischmann’s project “My Forest Farm” is one of the most ambitious artworks that illustrate this stance. The zero-carbon footprint art “work” is a voluntary carbon–offset program in the form of a reforestation initiative in the Philippines. In 2008, Flesichmann began planting nearly 2,000 trees on four acres with the aid of the local community. His project aims to challenge the booming carbon offset-market which he believes wrongly simplifies the issues of climate change by pretending that the problem of greenhouse emissions can be solved simply by purchasing offsets (an efficient transactional mechanism suited to busy people with no time to contemplate the environmental issues at stake).  My Forest Form reveals the complexities and time-consuming process of carbon-dioxide sequestration. Although his project results in carbon off-setting, he does not offer the carbon credits for sale. Instead, Fleischmann offers art – each of the trees is photographed and its GPS location recorded, and then exhibited in galleries and sold via the project website for 10 euros each. The earnings help fund the reafforestation project and educate the public about nature’s time-scales.

Dragonfly – austrogomphus guerini, Blue Mountain View (photo: B. Richardson)

In conclusion, when reflecting on the roles of environmental restoration and reconciliation, we should appreciate that it is not just about improving nature but also improving human society. Restoring damaged ecosystems is not a viable long-term proposition if humankind remains emotionally and cognitively detached from its natural environs. Without inculcating greater ecological literacy, society will likely just repeat its past mistakes and undo any gains from new restorations. Participation in restoration projects can help communities understand their place in the deep time-scales of Earth’s landscapes, and may help nurture their biophilic impulse. Not everyone can elope to a place like Blue Mountain View, but we should all have some opportunities to engage with and learn about nature in which we are embedded and dependent like a cell within a body.

[1] Edward O. Wilson, Biophilia (Harvard University Press, 1984).

[2] See further Benjamin J. Richardson, Time and Environmental Law: Telling Nature’s Time (Cambridge University Press, 2017): in press.

[3] Margaret A Palmer and JB Ruhl, “Aligning Restoration Science and the Future of Law to Sustain Ecological Infrastructure for the Future” Frontiers in Ecology and the Environment 3(9) (2015): 512.

[4] Benjamin J. Richardson, “Reclaiming Nature: Eco-restoration of Liminal Spaces” Australian Journal of Environmental Law 2(1) (2016): 1; Caroline Fraser, Rewilding the World: Dispatches from the Conservation Revolution (Picador, 2009).

[5] Keith Bradby, Amanda Keesing and Grant Wardell-Johnson, “Gondwana Link: Connecting People, Landscapes, and Livelihoods Across Southwestern Australia” Restoration Ecology 24(6) (2016): 827.

[6] Dave Butler, Tony Lindsay and Janet Hunt, Paradise Saved (Random House, 2014).

[7] Adrian Manning, David Lindenmayer and Joem Fischer, “Stretch Goals and Backcasting: Approaches for Overcoming Barriers to Large-scale Ecological Restoration”, Restoration Ecology 14(4) (2006): 487.

[8] Michael Rosenzweig, Win-Win Ecology (Oxford University Press, 2003).

[9] Paul E Duckett and Vincenzo Repaci, “Marine Plastic Pollution: Using Community Science to Address a Global Problem” Marine and Freshwater Research 66(8) (2015): 665.

[10] Jeremy Greenwood, “Citizens, Science and Bird Conservation” Journal of Ornithology 148 (2007): 77.

[11] E.g., Biodiversity Conservation Act 2016 (New South Wales); Sustainable Planning Act 2009 (Queensland).

19/11/2016

Reflections on the Wildlife Justice Commission and its Public Hearing concerning Wildlife Trafficking in Vietnam

The illegal trade in wildlife is currently the fourth largest global illegal trade (following the illegal trade in narcotics, the trade in counterfeits, and human trafficking) and is resulting in drastic declines in the populations of many species, in addition to being strongly linked to other crimes such as corruption and fraud. While most countries have enacted laws to regulate the trade of wildlife specimens, both the strength and the enforcement of such laws vary considerably from one country to the next. This blog post briefly considers the role of a relatively new innovation – the Wildlife Justice Commission (WJC) – in improving this situation through a combination of investigative techniques, public dialogue, and international pressure.

The WJC is an NGO established in 2015 with the objective of contributing to the disruption of transnational organized crime involving wildlife, timber and fisheries. The Commission seeks to achieve this end, firstly, by sharing intelligence and working with domestic law enforcement agencies, thereby assisting governments to enforce the law. In instances in which governmental cooperation is not forthcoming, the WJC produces a ‘Map of Facts’ (essentially a case file based on the Commission’s on-the-ground investigations, which maps out criminal networks and their illicit activities) and engages in diplomacy in an attempt to convince national authorities to act on the information provided. Where this too yields unsatisfactory results, a Public Hearing may be held with the purpose of allowing experts and the public to consider fact-based evidence and pressuring the relevant government to take legal action.

Although still in its infancy, the WJC has already involved itself in several investigations, one of which has culminated in a Public Hearing, held in The Hague on 14-15 November 2016. The Hearing focused on the trafficking of specimens of various species that are listed on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) in Nhi Khe, Vietnam. Whilst not a legal trial, the first portion of the Hearing followed a trial-like format, with an attorney presenting an overview of the case’s Map of Facts through the questioning of witnesses, supported by photographic and video evidence. On its second day, the Hearing involved a series of discussions with, and presentations by, academic experts and representatives of conservation-related NGOs, aiming primarily to suggest means of combating illegal wildlife trade, both in Nhi Khe specifically and as a broader global problem. The Vietnamese government was invited to participate, but elected only to send an observer.

The WJC Accountability Panel (Photo: M. Lewis)

The Hearing was held before an independent ‘Accountability Panel’, comprising an impressive lineup of international experts, including, inter alia, current/former judges from the International Criminal Court, Inter-American Court of Human Rights, and East Africa Court of Justice. Throughout the process, members of the Panel were able to question witnesses and other speakers, as was the Director of Proceedings (the position of which was filled by an international broadcast journalist). Questions from the Accountability Panel in particular highlighted the various limitations of the WJC’s approach and what an organization of this nature is able to do from a legal and practical perspective. The WJC has, on several occasions over the past year, sent undercover investigators to Nhi Khe (see further the Al Jazeera documentary ‘The Poacher’s Pipeline’). However, these persons – being representatives of an NGO rather than law enforcement officials – were unable to purchase wildlife products without themselves infringing the law. Thus, although they were able to demonstrate that large amounts of what appeared to be genuine wildlife specimens (as identified by experts on the basis of photographs) were being offered for sale in Nhi Khe, they were unable to prove the actual occurrence of transactions, obtain physical samples, or create opportunities for working their way to other links in the wildlife trafficking chain. They were further unable to investigate private sector involvement in the relevant organized crime networks by, for instance, subpoenaing the bank accounts into which sellers indicated that payments could be made; and did not explore the prevalence of public sector corruption through the direct investigation of government officials.

Despite these constraints, the Panel was ultimately prepared to confirm the conclusions in the WJC’s Map of Facts, finding, inter alia, that Nhi Khe is a major hub for the illegal processing and retail distribution of wildlife; that the various persons of interest identified in the Map of Facts have been actively involved in illegal wildlife trade and ancillary crimes; and that these activities have occurred openly within local and provincial police jurisdiction. While the Panel acknowledged that the Vietnamese government has taken a number of positive actions towards curbing the illegal wildlife trade, it also identified various failures in Vietnam’s approach and enumerated a series of surprisingly detailed recommendations. These included measures to enforce existing laws (for instance, use of the WJC’s Map of Facts to conduct an investigation targeting individuals and networks operating in Vietnam, the pursuit of criminal prosecutions where sufficient evidence is available to support these, and the allocation of resources to detect illegal trade on social media); as well as measures to address inadequacies with the laws themselves (for instance, amending organized crime and corruption statutes to incorporate the maximum number of ancillary crimes, enacting laws to address civil asset forfeitures, and ensuring the prompt entry into force of a new penal code addressing the illegal killing and trafficking of wildlife). The Panel stressed that implementation of the recommended actions would contribute to Vietnam’s compliance with its international commitments under CITES, the UN Convention against Transnational Organized Crime, and the UN Convention against Corruption. It further encouraged the other Parties to these Conventions to take appropriate measures to support Vietnam and called upon the CITES Standing Committee to take note of its recommendations and to consider imposing trade sanctions on Vietnam.

(Photo: M. Lewis)

Of course, the recommendations of the WJC’s Accountability Panel are in no way legally binding, and the above process was not conducted under the banner of any particular treaty or intergovernmental organization. Nevertheless, the process does appear to offer several advantages. It is considerably quicker and cheaper than bringing a case before an international tribunal, such as the International Court of Justice, and does not hinge upon states’ acceptance of jurisdiction. Unlike the compliance mechanisms that have emerged under various environmental treaties, its recommendations need not be endorsed by a body that is made up of states Parties and thus inherently political (such as a Standing Committee or Conference of the Parties), but are instead issued by a panel of independent and internationally respected experts. Further, while many treaty compliance mechanisms fail to allow NGOs to either trigger non-compliance proceedings or participate in the functioning thereof, WJC Public Hearings are arranged by an NGO and rely heavily upon public participation. Apart from giving NGOs and the broader public the opportunity to inform the Accountability Panel’s case-specific recommendations, this approach enabled the Vietnam Public Hearing to act as a platform for both shining a spotlight on the seriousness of illicit wildlife trafficking (this being an issue which often fails to receive high priority in countries’ law enforcement agendas) and exchanging ideas about how this challenge can be combated. Discussions highlighted not only the need for aggressive enforcement in consumer countries, but also a variety of other necessary measures, such as focusing on demand reduction; working with communities in supplier countries to address human-wildlife conflicts and create alternative sustainable livelihoods; and supporting collaborative, evidence-based investigations between countries in order to build intelligence along the entire trafficking chain. They further emphasized the role that states’ national laws can play in (i) pressuring other countries to address wildlife crime by providing for the imposition of sanctions against countries that undermine the effectiveness of international wildlife treaties (see, e.g., the Pelly Amendment to the US Fishermen’s Protective Act, the use of which played an important role in pressuring Taiwan to control trafficking in rhinoceros horn and tiger bone); and (ii) ‘internationalizing’ the laws of other countries by making it an offence to trade in wildlife taken/possessed/sold in violation of any foreign law, thereby enhancing states’ ability to dismantle transnational organized crime networks (see, e.g., the US Lacey Act).

Vietnam has recently engaged in a flurry of activities aimed at demonstrating its commitment to combating wildlife trafficking (including its hosting this week of the Hanoi Conference on Illegal Wildlife Trade). However, it remains to be seen whether these activities will be sustained over time and will extend to include implementation of the recommendations from the WJC’s Public Hearing. It will also be interesting to see how these recommendations are treated (if they are acknowledged at all) by future meetings of the CITES Standing Committee and Conference of the Parties, given that they did not emanate from a procedure agreed to by governments. At the very least, the WJC has demonstrated that it has a useful role to play in collecting and verifying information, as well as encouraging the international community to take a serious interest in efforts to combat illicit wildlife trade. Hopefully, the Commission’s Public Hearing procedure will also prove to be an effective catalyst for action by governments and other stakeholders.