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21/12/2015

The EU Regulation of Genetically Modified Organisms in 2015: at the Crossroad of History

By Ji Li (TLS)

The EU authorization of genetically modified organisms (GMOs) is the most strange and controversial area in the whole EU law system: the scientists are seriously distrusted by the general public, the authorization procedure is ‘unreasonably’ paralyzed or delayed, and the authorized GM products are banned by Member States without legitimate reason. But this is not the case in any other field of innovative technology or environmental law, and cannot be explained simply by precautionary principle or political pressure. This conundrum has puzzled the EU policy makers and lawyers for many years, and 2015 is a crucial year of fundamental reform. With the introduction of the opt-out clause, Member States now have freedom to ban GMOs without recourse to scientific evidence. Such a move may also cause negative effects concerning the EU internal market law and its obligations under the WTO law. We are now standing at the crossroad of history.

GMO is defined as “an organism, with the exception of human beings, in which the genetic material has been altered in a way that does not occur naturally by mating and/or natural recombination”.[1] The commercial application of GM technology in the agricultural sector can introduce many desirable traits into one single crop, thus has huge economic, health and environmental benefits. At the same time, people are also concerned about its potential environmental and health risks, as well as some ethical and socio-economic issues. Under the current EU law, both GM crops and foods/feeds must go through the authorization procedure before marketing. This involves two stages of decision-making: a scientific assessment about their safety and a political vote about their overall acceptability. However, in the past voting, because Member States were deeply divided in their opinions, there were hardly any qualified majority reached in the authorization procedure. In the end, it is always the Commission makes the decisions, which are based on the scientific reports of the European Food Safety Authority (EFSA) and usually grant the authorizations. This fact (purely science-based decisions, at least on the surface) triggers many Member States’ objections and the Council’s reactions. As a result, the authorization of GM food/feed is seriously delayed, and the authorization of GM crops is totally paralyzed, which are in violation of the EU law. But the Commission could not do anything about it because the Member States’ ‘illegal’ actions were backed by the Council.[2]

After many years’ tough negotiations and some small legal revisions, in March 2015 a fundamental legal reform called ‘opt-out clause’ was agreed by all Member States and enacted by the Commission.[3] According to this new legislation, on the issue of GMO cultivation, Member States pro- and anti-GMO are finally unleashed from the political disputes and formally part with each other. For anti-GMO countries, they can now ban GM crops even after authorization without any need of scientific evidence. This can be done either by a blanket withdrawal from all the future authorizations (without need of giving any reason) before 3 October 2015, or (after that date) by quoting some ‘compelling’ socio-economic reasons listed in the legislation in individual case. As a result, 17 out of the 28 Member States have totally opted out on all their territories in this way,[4] while 3 kingdoms of the UK (Scotland, Wales and Northern Ireland, leaving only England to be willing to cultivate GMO) and the French-speaking Wallonia region of Belgium also declared to be GMO-free.[5] For pro-GMO countries, it is expected that the paralysis in the GMO authorization can be unblocked so that more GM crops can be authorized and cultivated.

However, this move also brings about legal uncertainties and new challenges. First, it is hard to say the opt-out clause is conform to the EU internal market law. It is rather to say that it is an exception to the principle of free movement of goods based upon all Member States’ political endorsement.[6] Some Member States and MEPs also would like to opt out for GM food/feed, but such requests were firmly rejected by the European Parliament’s Environmental Committee on the grounds of protecting the EU internal market. This shows that the EU policy makers are very aware that the political exception to the internal market rule cannot be too wide. Second, the opt-out clause is also against the EU’s obligations under the WTO law, especially after the famous US-EU Biotech case in 2006. There is no way to defend in this respect, people just hope the EU will not be sued by the Unites States (and other GMO-producing countries) for two practical reasons: (1) more GM crops will be cultivated in pro-GMO countries, which will hopefully make up for their losses; (2) the import of GM crops is relatively a small part of business (compared to GM products). Third, whether the principle of proportionality is applicable in the scenario of GMOs is also a big issue. It is uncertain at this moment whether Member States’ blanket ban of GM crops (without even giving reasons) would be challenged in the EU courts. Last, the increased cultivation in pro-GMO countries and the total ban in anti-GMO states will expose the sensitive issue of cross-border coordination and the potential liability arising out of GMO ‘contamination’.

In sum, the whole EU GMO regulatory framework stands at the crossroad of history and is facing new possibilities and challenges. Instead of one unified procedure, now the EU regulation of GMOs is running on double trajectories. In the coming few years we will witness how this new approach addresses the needs and pressures from inside and outside EU.

 

[1] Article 2(2), Directive 2001/18/EC.

[2] It is illegal because these Member States do not have scientific evidence to support a prohibition or restriction to the free movement of an authorized goods in the EU internal market.

[3] Directive (EU) 2015/412.

[4] These Member States include: Austria, Bulgaria, Croatia, Cyprus, Denmark, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland and Slovennia.

[5] Reuters.com by Barbara Lewis, ‘Majority of EU Nations Seek Opt-Out from Growing GM Crops’, 2015.10.04, available online at: http://www.reuters.com/article/2015/10/04/us-eu-gmo-opt-out-idUSKCN0RY0M320151004#xu0BYp9saiqghPUK.97 (last visited on 2015.11.08).

[6] The Commission indicates that the legal basis of opt-out clause could be Article 2 TFEU, which is a new provision introduced by the Lisbon Treaty. The third sentence of Article 2 (2) TFEU reads: “the Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence”.


01/12/2015

Outcomes of the Meeting of the Parties to the Agreement on the Conservation of African-Eurasian Migratory Waterbirds

By Melissa Lewis
Grey Crowned Crane. Photo by Melissa Lewis.

A Grey Crowned Crane – one of the species for which an International Single Species Action Plan was adopted at AEWA MoP6. (Photo: M. Lewis)

During their annual movements, migratory birds traverse multiple jurisdictions, the conservation laws and policies of which may differ considerably. It is thus unsurprising that, over the past century, a myriad of international instruments have been adopted to facilitate international cooperation in bird conservation. However, a shortfall of many of these instruments is that they have either failed to encompass bird populations’ entire migration routes (‘flyways’) or failed to require that Parties take a flyway approach in implementing their provisions. The first treaty to be explicitly dedicated to flyway conservation was the 1995 Agreement on the Conservation of African-Eurasian Migratory Waterbirds[i] (AEWA) – an ancilliary Agreement to the Convention on Migratory Species of Wild Animals[ii] (CMS), which attempts to maintain or restore the favourable conservation status of 254 species of migratory waterbirds. Not only is AEWA’s ‘Agreement Area’ designed to encompass entire migration systems, but the Agreement provides for a flyway approach in respect of both habitat conservation (requiring Parties to maintain networks of suitable habitats throughout species’ entire ranges[iii]) and the conservation and management of waterbird populations themselves (requiring, for instance, that, in implementing the principle of sustainable use, Parties take populations’ full geographic ranges into account[iv]). The Agreement’s other distinguising features include, inter alia, its detailed and legally rigorous provisions and its flexibility to evolve over time – these features being facilitated by AEWA’s use of a legally binding ‘Action Plan’, which applies at the population level (allowing for a very directed and nuanced collection of conservation commitments) and is easier to amend than the Agreement text itself.[v]

This November, the sixth session of the AEWA Meeting of the Parties (MoP6) met in Bonn, Germany. With 2015 marking the 20th anniversary of AEWA’s adoption, the theme of the MoP (‘Making Flyway Conservation Happen’) reflected the Agreement’s leading role in promoting and facilitating flyway conservation, and participants both celebrated AEWA’s successes and considered the challenges facing its future implementation. Parties adopted a total of 22 resolutions, addressing a variety of scientific, technical, budgetary and administrative issues. A brief overview of these developments is provided below.

Amendments to AEWA’s Annexes

AEWA’s three annexes define the Agreement Area (Annex 1), list the species to which the Agreement applies (Annex 2), and contain the Agreement’s Action Plan and a Table of categorized populations to which the Action Plan applies (Annex 3). Although it has been suggested that the AEWA Agreement Area might ultimately be expanded to include the Central Asian Flyway,[vi] no proposal to amend Annex 1 was placed before MoP6. The MoP did, however, adopt a new standard reference for waterbird species taxonomy and nomenclature, making it necessary to amend Annex 2’s order of families and species, as well as various species’ scientific and vernacular names, so as to align these with the new standard reference. The Table in Annex 3 was similarly amended, and changes were made to the categorizations of several populations to reflect changes in their conservation status (and thus the protections to which they are entitled under the AEWA Action Plan). [vii] Unfortunately, the mismatch in timetables for AEWA listings and listings on the IUCN Red List of Threatened Species[viii] meant that the recent global Red Listing of several AEWA species is not reflected in the amended categorizations and will only be taken into account at MoP7.[ix] Several Parties have also indicated that they will need to enter reservations in respect of certain changes to AEWA’s categorizations – for instance, some of the species with populations that have been up-listed are currently huntable under the EU Birds Directive, with the result that the EU will need to enter reservations in respect thereof.

Guidance

Since its entry into force, AEWA has facilitated the development of a large body of guidance on the conservation and management of waterbirds and their habitats. Such guidance takes the form of either resolutions or, more detailed, ‘Conservation Guidelines’, both of which are adopted by the MoP and, while not directly binding, inform the interpretation of provisions of the Agreement text and Action Plan. Although MoP6 did not make any amendments to the AEWA Action Plan itself, the MoP did adopt guidance on implementing the Action Plan’s population approach in national legislation, as well as guidance on the meaning of the term ‘disturbance’ (and several terms related thereto) as used in various Action Plan provisions.[x] Resolutions were also adopted regarding waterbird monitoring, sustainable use, control of non-native waterbirds, climate change adaptation, threats in the marine environment, impacts of renewable energy deployment, and the avoidance of additional and unnecessary mortality (such as that resulting from collision with, or electrocution by, power generation infrastructure; poisoning; illegal killing; incidental killing; and pollution).[xi] Rather than competing with existing guidance documents, several of these resolutions encourage AEWA Parties to utilize guidance developed under other fora, such as the CMS, Ramsar Convention on Wetlands of International Importance,[xii] and various Regional Fisheries Management Organizations. MoP6 further adopted Conservation Guidelines on renewable energy technologies and migratory species (this guidance also having been adopted by the CMS Conference of the Parties[xiii]), and national legislation for AEWA’s implementation; as well as revised Guidelines on sustainable harvest,[xiv] which revisions represent a significant improvement insofar as they attempt to address all of the motivations for harvesting waterbirds within the AEWA region rather than only harvest for recreational purposes. Finally, the MoP adopted a new AEWA Communication Strategy to guide communication efforts in support of the Agreement’s implementation.[xv]

Guidance on the Agreement’s strategic priorities is currently found in the AEWA Strategic Plan[xvi] and Plan of Action for Africa.[xvii] While both of these documents were initially to expire in 2017, the MoP has extended their lifespans until its next session (which will take place in 2018[xviii]) and instructed that revised versions for the period 2019-2027 be presented to MoP7.[xix] Unfortunately, while some progress has been made towards meeting the various objectives identified by AEWA’s current Strategic Plan, Parties are still far from achieving the Plan’s central goal of maintaining migratory waterbird species and their populations at, or restoring them to, a favourable conservation status throughout their flyways.[xx] The Secretariat’s ability to assess progress towards meeting the Strategic Plan’s objectives has also been frustrated by the failure of many Parties to submit national reports on their AEWA-implementation efforts (as is required by Art. V(c) of the Agreement). MoP6 experienced a decline in the submission rate of national reports, with only 55 per cent of the reports due being received.[xxi]

International species action and management plans

A central feature of AEWA’s work is the development and implementation of International Single Species Action and Management Plans (ISSAPs and ISMPs). Although species action and management planning per se aren’t unique to the Agreement, AEWA and the CMS are uniquely positioned to develop plans at the flyway level and, in this way, add value to the planning processes of smaller instruments, such as the EU Birds Directive. AEWA’s plans also fill a significant gap in the frameworks provided by other legal instruments insofar as they have begun (starting with the ISMP for the Svalbard population of Pink-footed Goose, which was adopted at MoP5) to implement internationally coordinated harvest management – something which has not been attempted under any other instrument operating within the Agreement Area. MoP6 adopted five new ISSAPs (adding to the 19 that had previously been adopted under the Agreement) and one revised ISSAP.[xxii] Two of these address intra-African migrants (the Grey Crowned Crane and the Shoebill), helping to dilute the largely European focus of AEWA’s earlier plans; while a further two (those for the Taiga Bean Goose and Eurasian Curlew) envisage the development of adaptive harvest management processes, but differ from the ISMP for the Pink-footed Goose insofar as they address populations which need to be restored to a favourable conservation status. The MoP also adopted AEWA’s first International Multi-species Action Plan (for Benguela upwelling system coastal seabirds), as well as a decision-making process for the revision and retirement of ISSAPs.[xxiii] In addition to instructing the AEWA Secretariat to convene AEWA International Species Working Groups to coordinate the implementation of various species action plans,[xxiv] the MoP requested the Secretariat to ‘facilitate, subject to the availability of financial resources, the establishment of a European multispecies goose management platform and process to address sustainable use of goose populations and to provide for the resolution of human-goose conflicts’, targeting not only goose populations for which ISSAPs/ISMPs are already in place, but also populations of Barnacle and Greylag Geese (for which international management plans have not yet been developed).[xxv]

Resource constraints, prioritization of AEWA’s activities, and enhancing efficiency through synergies

As is the case for many contemporary environmental treaties, resource constraints present one of the most significant hurdles to AEWA’s effectiveness. Although the core budget that MoP6 adopted for the upcoming triennium (which provides for zero nominal growth from the MoP5 budget) allocates some funding for implementing AEWA’s ‘African Initiative’, the budget is dedicated primarily to the Agreement’s administration.[xxvi] As in previous triennia, implementation activities will therefore rely predominantly upon voluntary contributions and external support. In light of this challenge, it is noteworthy that MoP6 adopted a resolution on resource mobilization for AEWA’s implementation.[xxvii]

Given the resource constraints faced by AEWA, prioritization of activities is obviously desirable. This was, to some extent, recognized at MoP6, at which Parties agreed that future lists of International Implementation Tasks (which are adopted at each MoP to guide prospective donors in their allocation of funds) be ‘more limited in extent’, and adopted a shorter list than those adopted at previous MoPs.[xxviii] For the first time, the MoP also adopted a prioritized and costed work plan summarizing the scientific and technical tasks for the AEWA Technical Committee.[xxix] In the future – and especially when the AEWA Strategic Plan is undergoing revision during this triennium – there is arguably a strong need to identify both areas in which AEWA is able to work through other instruments and organizations and areas in which the Agreement is able to make a unique contribution and should be concentrating its efforts. While some of AEWA’s ‘niche’ areas are obvious (such as the promotion of the flyway approach, the development of flyway-level species action and management plans, and sustainable use), there are other areas in which the Agreement’s role and its relationship with other instruments need to be more clearly defined – an example being the conservation of seabirds.[xxx]

In recent years, the desire to improve AEWA’s efficiency and thereby allow resources to be diverted from the Agreement’s administration towards its implementation has also resulted in various suggestions for enhancing synergies between AEWA and the CMS. Although there is a long history of cooperative efforts between AEWA and its parent Convention, the desirability of establishing more formalized synergies has been a point of controversy. Following the establishment of a pilot joint communication and outreach unit in 2014,[xxxi] MoP6 decided to take a ‘stepwise approach’ (under the control of the AEWA and CMS Standing Committees) to strengthening synergies in common service areas, but has taken note that this is not aimed at a merger of Secretariats and confirmed that the appointment of a joint Executive Secretary is not a desired option.[xxxii] This, of course, is a separate issue from whether AEWA itself should be merged with other bird-related instruments in the CMS Family – a question which has yet to be considered by the AEWA MoP, but which might arise in the future in the context of the CMS Future Shape Process.[xxxiii]

 

This post was written on the basis of the author’s participation at AEWA MoP6, in the capacity of Environmental Law Expert on the Agreement’s Technical Committee. A detailed analysis of AEWA’s evolution, unique features, and challenges is provided in: Melissa Lewis ‘AEWA at Twenty: An Appraisal of the African-Eurasian Waterbird Agreement and its Unique Place in International Environmental Law’ 19:1 Journal of International Wildlife Law & Policy (2016) 22-61


[i] http://www.unep-aewa.org/.

[ii] http://www.cms.int/.

[iii] AEWA Art. III(2)(d).

[iv] AEWA Action Plan para. 4.1.1.

[v] AEWA Art. X.

[vi] See Doc. UNEP/CMS/CAF3/REPORT, Annex 2.

[vii] AEWA Resolution 6.1.

[viii] http://www.iucnredlist.org/.

[ix] The need to consider these species at MoP7 is, however, is recognized in a preambular paragraph of Resolution 6.1.

[x] AEWA Resolution 6.7.

[xi] AEWA Resolutions 6.3, 6.4, 6.6, 6.9, 6.11 and 6.12.

[xii] http://www.ramsar.org/.

[xiii] CMS Resolution 11.27.

[xiv] AEWA Resolution 6.5.

[xv] AEWA Resolution 6.10.

[xvi] http://www.unep-aewa.org/en/documents/strategic-plan.

[xvii] http://www.unep-aewa.org/en/node/1984.

[xviii] AEWA Resolution 6.19.

[xix] AEWA Resolution 6.14.

[xx] See further Doc. UNEP/AEWA/MOP6.12.

[xxi] See Doc. UNEP/AEWA/MOP6.13.

[xxii] AEWA Resolution 6.8.

[xxiii] Ibid.

[xxiv] Ibid.

[xxv] AEWA Resolution 6.4.

[xxvi] AEWA Resolution 6.18.

[xxvii] AEWA Resolution 6.21.

[xxviii] AEWA Resolution 6.13.

[xxix] AEWA Resolution 6.17.

[xxx] See AEWA Resolution 6.9.

[xxxi] See Doc. UNEP/AEWA/MOP6.10Rev.1.

[xxxii] AEWA Resolution 6.22.

[xxxiii] CMS Resolution 10.9, Annex 1, action 15, read with CMS Resolution 11.14, Annex 1, action 19.


08/09/2015

Legal Efforts to Achieve Optimal Transboundary Population Level Management for European Large Carnivores

By Jennifer Dubrulle

Europe experiences a large carnivore comeback: the European Union hosts 12,000 grey wolves (Canis lupus), 17,000 brown bears (Ursus arctos) and 10,000 Eurasian lynx (Lynx lynx). Most of these populations (8/10 wolf populations; 8/10 for bear; 10/11 for lynx) do not live within the boundaries of one country and are shared by two or more countries.[1] It is widely accepted that conservation planning for these species should be adjusted to the biological unit of each population, rather than to international frontiers. As EU Member States provide different levels of protection for large carnivores legal fragmentation arises.[2] It becomes then increasingly difficult, taking population sink effects [3] into account, to maintain viable large carnivore populations without a neighbour’s help.

Detailed criteria for optimal transboundary population level management (TPLM) are set out in the Guidelines for Population Level Management Plans for Large Carnivores (Carnivore Guidelines).[4][5] I analyse the role of the applicable international legal framework as regards the implementation of TPLM. Key instruments are the Bern Convention on European Wildlife Conservation and the EU Habitats Directive. For two sets of large carnivore populations, the Alpine and Carpathian ones, additional legal instruments are in place, that is the Alpine and Carpathian Conventions with their Protocols on biodiversity.

The first criterion of the Carnivore Guidelines requires a shift of focus from the management of transboundary populations at the national level to the population level. The drafters of the Bern Convention and the Habitats Directive focused obligations principally at the national level. Gradually measures were taken under both instruments to overcome this potential shortcoming by respectively adopting Recommendations (Bern Convention) and guidance (Habitats Directive) calling for TPLM. These instruments are not legally binding and therefore uncertainty remains whether population management must be carried out at the population level/and or at the national level.[6] Achieving management at the population level is further complicated by the scope of the Bern Convention and the Habitats Directive. Their scope coincides with the country’s border of the Contracting Parties, respectively Member States. In other words, these countries commit each individually to only protect large carnivores present within their own borders. In contrast, the Alpine Convention and the Carpathian Convention require large carnivore management to be conducted at the population level, through a combination of legally binding provisions and non-binding guidance and the fact that the scope of these mountain regimes coincides with the biological unit (that is the Alpine and Carpathian mountain ranges), which coincides approximately with the contours of the large carnivore populations concerned. By way of explanation, the Contracting Parties of the Alpine and Carpathian Convention commit collectively to protect large carnivores wherever present throughout the mountain range, going beyond strict adherence to country borders.

A second criterion requires the operationalization of TPLM through the development of management plans at the population level. The commitments to draw up TPLM plans enshrined in the Bern Convention’s Recommendations are not legally binding. Whereas the Habitats Directive guidance requires TPLM plans to be drawn up this obligation is not binding either. It cannot be considered an obligation of result as a Member State cannot be held responsible for the failure to develop a management plan if one (or more) of its neighbours does not agree to develop such a plan. It is solely an obligation of effort.[7]Conversely, for Contracting Parties of the mountain regimes stronger commitments apply regarding the development of transboundary management plans.

Legal fragmentation under the Bern Convention and Habitats directive

Legal fragmentation under the Bern Convention and Habitats directive

A third criterion of the Carnivore Guidelines requires that best management practices are developed and applied. The four international and European legal instruments under discussion set up structures to ensure actual implementation of TPLM. The Bern Convention’s Group of Experts on the Conservation of Large Carnivores in Europe facilitates TPLM by monitoring Contracting Parties’ implementation of this obligation. The 2014 terms of reference of the EU Platform on Coexistence between People and Large Carnivores provide that the Platform facilitates TPLM and the implementation of the LIFE program, although this program so far [8] primarily attacks threats at a local scale, contributes to the population’s viability too. Under the mountain regimes significant progress has been made towards achieving common monitoring and management measures for large carnivores throughout the mountain ranges. The Carpathian Working Group on Conservation and Sustainable Use of Biological and Landscape Diversity develops common monitoring standards and BioREGIO Carpathians developed common management measures in transboundary pilot areas. The Alpine Working Group Large Carnivores, Wild Ungulates and Society Platform develops common monitoring standards and is expected to propose common management standards for the Alpine region by 2016.

In the end, even if full-fledged transboundary population level management has not yet been achieved for any population (no transboundary management plans have been adopted yet for Europe’s large carnivore populations)[9] the two mountain regimes have distinct features that make them better equipped for achieving actual implementation of TPLM than the Bern Convention and Habitats Directive.

This blog post is the result of discussions at the Environmental Law Lunch of June 8 @ Tilburg University and a poster presentation [8MB PDF] at the International Congress for Conservation Biology and European Congress for Conservation Biology (3-7 August 2015, Montpellier).


[1] G. Chapron et al, Recovery of large carnivores in Europe’s modern human-dominated landscapes, Science 346, 2014, 1517-1519.

[2] E.g. while a wolf is strictly protected in the Czech Republic (Habitats Directive Annex IV) it is culled in neighbouring Slovakia (Habitats Directive Annex V).

[3] The theory of source-sink dynamics applied to large carnivores in a transboundary context goes as follows: a source subpopulation in country B, where reproduction exceeds mortality, becomes a sink subpopulation because of intensive culling, where reproduction fails to compensate for mortality. This sink subpopulation can then no longer subsidize another sink population (for instance, because of low habitat quality) in country A causing the decline of the metapopulation; Carnivore Guidelines, 19, fn 10; R.W. Howe and G.J. Davis, The demographic significance of ‘sink’ populations, Biological Conservation, 57, 1991, 239.

[4]J.D.C. Linnell, V. Salvatori and L. Boitani, Guidelines for Population Level Management Plans for Large Carnivores in Europe, European Commission, Brussels, 2008,  http://ec.europa.eu/environment/nature/conservation/species/
carnivores/pdf/guidelines_for_population_level_management.pdf
.

[5] One of the criteria that is ‘operationalizing favorable conservation status for large carnivores’ is not discussed here. This criterion goes deep into science, Carnivore Guidelines, 14-25. The interdisciplinary research project Claws & Laws of the Department of Ecology of the Swedish University of Agricultural Sciences and the Faculty of Law of Uppsala University aims to clarify the concept of Favourable Conservation Status by linking law and ecology (the project runs from January 2014 to December 2016), http://www.clawsandlaws.eu/.

[6] A. Trouwborst, Living with Success – and with Wolves: Addressing the Legal Issues Raised by the Unexpected Homecoming of a Controversial Carnivore, European Energy and Environmental Law Review, 23(3), 2014, 96-97.

[7] A. Trouwborst, Living with Success – and with Wolves: Addressing the Legal Issues Raised by the Unexpected Homecoming of a Controversial Carnivore, European Energy and Environmental Law Review, 23(3), 2014, 100.

[8] The publication ‘LIFE and human coexistence with large carnivores’ by J.P. Silva et al, 2013 provides its time for LIFE to move from the local to the population level, 68-69, http://ec.europa.eu/environment/nature/conservation/species/carnivores/
pdf/life_and_human_coexistence_with_large_carnivores.pdf
.

[9] J.C. Blanco, Towards a population level approach for the management of large carnivores in Europe. Challenges and opportunities, European Commission, Brussels, 2013, http://ec.europa.eu/environment/nature/conservation/species/carnivores/
pdf/task_3_transboundary_coop.pdf
, 5.

Category: Europe, Wildlife

26/04/2015

Monitoring and conservation of large carnivores in Europe

By Jennifer Dubrulle

Jennifer Dubrulle, junior member of the Ius Carnivoris project, a Tilburg University research project on the role of law in conserving and restoring wolves, bears and other European large carnivores, participated in a Large Carnivore Monitoring project in the Beskedy mountains in Slovakia. The project aims to track large carnivores and accurately map their presence in numbers. It is essential to correctly estimate the population numbers as hunting quotas are based on these estimations. Overestimations mean higher quotas, more carnivores shot, which might endanger the population’s viability. Underestimations mean lower quotas, less carnivores shot, which might negatively impact economic/recreational interests of hunters.

Lynx caught on camera

Lynx caught on camera

The high of our trip was the capture of a (well-known to be shy) lynx on our camera trap. We also were lucky enough to see quite some fresh tracks of bears, wolves, lynx, fox and hazel grouse and see wild animals (wood mouse, three-toed woodpecker), their remains (roe deer prey) and scats (wolves and lynx). All of this is well-documented in the photo-album .

The low of the trip was feeling the reality of living where large carnivores live. Shy from human presence, they often live in remote, difficult accessible, areas. The transformation from a domesticated office cat to a wild lynx was physically challenging.

Category: Europe, Wildlife

14/05/2014

Wolves on Dutch doorstep: European law and the return of a controversial carnivore

By Arie Trouwborst (TLS)

In April 2014 automatic wildlife cameras in two German areas just across the Dutch border caught pictures showing an animal with all the looks of a wolf (Canis lupus). DNA found in wolf-like scat from the area is being analyzed to know for sure. If in future the presence of this or another wolf can be reliably established on the Dutch side of the border this would be quite an event, as the last fully confirmed sighting of a wild wolf in the Netherlands dates back to 1845. The words ‘fully confirmed’ are justified because that animal was shot dead. Whereas wolves used to occupy most of Europe, they gradually disappeared from their former ranges, chiefly because of a lack of human tolerance for their presence. The species hung on in the east of the continent, and in isolated populations in Spain and Italy. In most European countries, wolves remained only in (fairy) tales.

Canis lupus in the Lüneburg Heath wildlife park, Germany (source: Wikimedia, user Quartl)

Canis lupus in the Lüneburg Heath wildlife park, Germany (source: Wikimedia, user Quartl)

But things are changing. Recent decades have seen a steep increase of wolves across Europe, both in terms of their numbers and the places where they occur. For instance, France and Germany – both wolf-less for many years – are now home to swiftly expanding wolf populations. These follow spontaneous re-colonizations in, respectively, Italy and Poland. Wolves travel impressive distances and the establishment of new packs has been steadily progressing westwards. The last few years have even yielded reliable records of the first wolves reappearing in Belgium and Denmark. The scene thus appears set for a natural return of wolves, whether from the German or French population or both, to the Netherlands. This would be a milestone indeed, as Holland is probably the last place on people’s minds when thinking of wolves. Already in 2011, and again in 2013, several tentative wolf sightings occurred in the east of the Netherlands, and in the spring of 2013 a wolf was camera-trapped just across the border in Germany, in the same area where one of this year’s wolf pictures was taken.

All of this is good news from a biodiversity conservation perspective, for at least two reasons. First, most big predator species worldwide are threatened and in decline. Second, large carnivores are of crucial importance for the proper functioning of ecosystems. Both aspects were emphasized in a recent review article on large carnivores in the journal Science. At the same time, the European wolf comeback comes with significant challenges that must be met in order to prolong the success story. In particular, conflict between humans and wolves has been a consistent theme throughout history. Wolves were exterminated for a reason! Such conflicts spring, among other things, from livestock depredation, human safety concerns and competition for the same prey with hunters. The animals tend to stir up controversy particularly when they reappear in regions and countries from which they disappeared long ago, and where people are no longer used, or willing, to live alongside them. Finding examples of such conflicts is easy, as the media tend to be eager to cover them – sometimes a little too eager, it seems. The Netherlands is a case in point as well, as the mere possibility of wolves returning to the country has been giving rise to significant debate in recent years, both in the media and in Parliament.

So why raise all of this in a law blog? To begin with, law played its part in the wolves’ demise. A representative example is the 19th century Dutch hunting act, ‘Jagt- en visscherijwet 1814’, which set a bounty to be collected for every dead wolf: 30 guilders (approximately 500 present day euros) for a female, 25 (~400 euro) for a male, and 15 (~250 euro) for each young wolf. Conversely, legal protection is often mentioned as one of the factors enabling the comeback of wolves since the 1970s, along with land use changes and increases in forest cover and wild prey populations. At the same time, law is of the essence for ensuring that the wolf’s recolonization of its former habitat takes place as smoothly as possible, particularly by minimizing and resolving human-wolf conflicts. Finally, in view of the fact that almost all current European wolf populations extend across more than one country, a particularly prominent role is reserved for international cooperation. Two significant legal instruments in this regard are the 1979 Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention) and the 1992 EU Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive). Both instruments contain important obligations regarding the protection of wolves and their habitat. Moreover, specific guidance for the application of these obligations to wolves and other large carnivores has been developed within the framework of both instruments by a dedicated group of experts called the Large Carnivore Initiative for Europe (LCIE).

Returning to the Netherlands, the Dutch government recently announced it will list the wolf as a strictly protected species under Dutch law, motivating this decision with reference to the Netherlands’ obligations under the Habitats Directive. Other steps undertaken by the Dutch authorities to prepare themselves and society at large for the wolf’s expected comeback include a fact-finding study, opinion poll, assessment of experiences in other countries and workshops involving all stakeholders ranging from conservationists to sheep farmers. The authorities also commissioned a legal study to assess the viability of various policy options regarding the management of wolves should they return to the Dutch landscape, and answer other legal questions raised by this anticipated return. Some examples are the following:

  • What is the (inter)national legal status of wolves returning to the Netherlands?
  • What can be done about wolves preying on livestock?
  • Is a zoning policy of ‘go and no-go areas’ for wolves a legally viable option?
  • At what stage of re-colonization are protected areas to be designated for wolves?
  • What is the position of wolf-dog hybrids and of measures to counter hybridization?
  • What role is reserved for transboundary cooperation?

The whole process culminated in the development of a blueprint for a national Wolf Plan [PDF], which was commissioned by the Ministry of Economic Affairs (the national authority currently dealing with wildlife conservation). The blueprint, which was finalized in October 2013, is the result of a participatory process involving national and provincial governmental bodies, protected area managers, NGOs, livestock farmers’ organizations, hunting associations and academics from various disciplines. The document sets out guidelines regarding information and communication, monitoring and research and the prevention and compensation of damages to livestock. It also includes a discussion of the applicable legislative framework for wolves, including the species’ generic protection through various prohibitions, the designation of protected areas and transboundary cooperation with neighboring states. The recent express designation of the wolf as a strictly protected species under Dutch law was one of the actions recommended in the blueprint, but it remains to be seen to what degree its other components will be transformed into actual government policy. At any rate, a feature that stands out is the proactive manner in which the entire process has been conducted, in the absence thus far of the protagonist species itself. The Dutch experience to date appears to affirm the intuitive notion that it is easiest to reach a level of agreement amongst stakeholders with conflicting views on wolves before the animals themselves arrive on the scene.

As just concisely illustrated, large carnivores like wolves not only constitute one of the hottest topics in the area of European wildlife conservation and management today, but also a rich topic for legal analysis. This post has done little more than introducing the topic and scratching the surface, and Canis lupus and other big predators like bears and lynx may well be revisited in future pieces.

- Arie Trouwborst

Selected further reading:

Tilburg Law School’s Kees Bastmeijer and Arie Trouwborst are the principal authors of the legal study mentioned above, and also assisted in the drafting of the Wolf Plan blueprint. They authored various scientific journal articles on legal issues concerning large carnivore conservation and management. Arie Trouwborst is a member of the Large Carnivore Initiative for Europe.


29/11/2013

Climate change and biodiversity: towards connectivity conservation law in the EU

By Jonathan Verschuuren (TLS)
cover

Many protected areas are badly suited to overcome climate change–induced shifts in species’ geographic ranges. Studies show that protected areas “have not been designed for efficient (or even complete) representation of species” (Hannah et al. 2007). Fixed protected areas alone will not be sufficient to safeguard biodiversity from the impacts of climate change. Hannah et al. show that between 6% and 22% of species in their analysis failed to meet representation targets for future ranges that take into account the impact of climate change, with a further increase expected under more severe climate change scenarios. Connectivity measures, such as the creation of corridors or stepping stones compensate for such losses. This is also reflected in the Millennium Ecosystem Assessment: “[c]orridors and other habitat design aspects to give flexibility to protected areas are effective precautionary strategies. Improved management of habitat corridors and production ecosystems between protected areas will help biodiversity adapt to changing conditions” (MEA 2005). A combination of several measures (enlarging areas, securing robust large areas, securing ecological connections between areas, and establishing real ecological networks) therefore seems to be the best approach to maximize the ability of nature to cope with the pressure of climate change on biodiversity.

The IUCN recently published a two volume publication titled ‘The Legal Aspects of Connectivity Conservation’ (IUCN 2013). Volume 1 gives a broad overview of current insights and understanding of connectivity conservation and explains through which legal mechanisms connectivity conservation can be achieved, taking examples from around the world, and focusing on land use planning law, development control law, voluntary conservation agreements and economic and market-based instruments. Volume 2 has a wealth of case studies of connectivity projects around the world. These projects range from local or regional projects, to nationwide or even continent wide connectivity projects. Examples of these are the nationwide ecological network in the Netherlands, the 3600km long corridor of the Great Eastern Ranges in Australia, the EU’s Natura 2000 network (including domestic projects in France, Germany, Spain, the UK, Finland and Slovakia) and corridors in Brazil, such as the Central Amazon Corridor.

Connectivity conservation and the management of connectivity conservation areas are emerging fields of scientific study and conservation management practice within the broader subject of nature conservation. In the most basic terms, connectivity conservation is a conservation measure in natural areas that are interconnected and in environments that are degraded or fragmented by human impacts and development where the aim is to maintain or restore the integrity of the affected natural ecosystems, linkages between critical habitats for wildlife, and ecological processes important for the goods and services they provide to nature and people. In fragmented ecosystems, wildlife corridors and other natural linkages such as green belts and large wildlife corridors have been common representations of connectivity conservation. The scientific emphasis takes into account connectivity needs across landscapes and seascapes, and in some cases even across continents, where necessary to maintain or restore specific linkages for habitat or species populations, or to maintain or restore important ecosystem processes. Scientific study and conservation practice have made important strides in understanding and applying connectivity conservation across a range of scales and functions.

The overarching conclusion from the research and analyses undertaken for this project as presented in Volume 1 of the report is the need for countries to become increasingly alert to their connectivity conservation needs, undertake connectivity planning, and initiate actions using existing mechanisms and opportunities as much as possible to negotiate and protect critical connectivity areas before they are lost to development. To support this process, a related conclusion is that a wide array of different legal instruments and tools already exist in many legal systems to begin to promote and implement science-based connectivity actions in priority landscapes/seascapes and local sites. Countries should start with these tools, using the best scientific information available, before development pressures make conservation or restoration no longer economically or political feasible. As experience is gained working with communities and landholders, and managing for connectivity conservation, a foundation of knowledge and support can be built for amending or enacting new legislation, as needed, to strengthen and integrate connectivity conservation authority into legal frameworks. Opportunities to use existing law and policy instruments should not be delayed by those efforts. It also is important to recognize that the law, by its nature and function, aims for clarity, certainty, and clearly defined processes and criteria for achieving specific goals and objectives. These features are essential for societies to have orderly interactions and effective future planning. In contrast, connectivity conservation is a tool for adapting to change due to dynamic factors related to current and new threats to protected areas, biodiversity and ecosystems, and to global change including climate change. Bringing the law and connectivity together requires that the law incorporate some flexibility in order for management to be able to respond to changing connectivity conservation needs and that connectivity conservation actions be based on the best available scientific information (in both the natural and social sciences) so that management actions and commitments are well founded for the foreseeable future. Law has several mechanisms that can provide flexibility. These include requirements for periodic review and revision of management plans, regular monitoring based on ecological criteria, the development of performance measures to help assess and evaluate whether management plans are achieving their intended purposes, and decision-making mechanisms to monitor and incorporate new scientific information relevant for connectivity conservation management as it becomes available.

For Europe, it is clear that Natura 2000 alone does not constitute a coherent network in the sense of truly interconnected protected areas throughout an entire country or throughout the whole of the EU. Additional, domestic instruments, mainly in the field of nature conservation law and spatial planning law are needed to create connectivity between the Natura 2000 sites. Even in case domestic instruments are applied, in addition to the EU’s Natura 2000 legal framework, to achieve connectivity, we still cannot be certain that the network remains just an ecological network on paper. Much depends on the actual application of all the laws and policies on activities within the areas that constitute the network. Farmers and other local landowners have to refrain from harmful activities, and/or have to actively manage the area to support the area’s connectivity function. Financial incentives are needed to make this happen. Fortunately, we can observe that EU Member States increasingly do apply such domestic instruments in order to achieve connectivity. Domestic policies in various Member States, such as the Netherlands and the UK, provide for additional connectivity instruments that add to the Natura 2000 network. Domestic subsidy schemes across the EU exist as well, and the EU’s LIFE+ scheme provide important financial incentives for connectivity. This, however, is largely due to national policy initiatives, and based upon national law instruments. At the EU level, there seems to be a slow movement towards accepting that connectivity measures are legally required by the current texts of the Birds and Habitats Directive. The Alto Sil judgment of the EU Court of Justice (Case C-404/09 European Commission v Spain), as well as a range of policy documents go into that direction. In my view, however, there is much to say for more explicit regulating connectivity (and restoration) requirements in binding legal instruments, such as the EU Habitats Directive. There is a fear that altering the current text of the Habitats Directive will open Pandora’s Box, leading to a decline of the impact of this Directive on nature conservation in Europe. Fear, however, generally is a bad advisor. The Habitats Directive is getting outdated, caught up by climate change and by large scale landscape fragmentation in Europe.


02/05/2011

Connectivity

By Jonathan Verschuuren (TLS)

26 April, 2011

Scientists are seeing the first effects of climate change primarily in natural phenomena. Migratory birds are returning earlier or they do not migrate at all. Butterflies are being seen in completely new habitats. Plants are growing at higher altitudes. Biologists investigating these phenomena conclude that many species will die out simply because there is a limit to their ability to adapt. A bird may return from its migration early, but if the caterpillar which is its main food source does not appear as expected, then the bird will not survive. And mountains are only so tall: plants cannot grow beyond the summit! Scientists are impressing upon policymakers the need for large, interlinked nature reserves. This will give plants and animals space to migrate to new, suitable habitats.

‘Connectivity’ is a hot topic in Australia, as it is in many other countries. Several initiatives have been put forward to create natural corridors between current nature preserves crossing through agricultural areas and towns and cities. By developing clever projects with the close involvement of private parties and local communities, natural corridors stretching for thousands of kilometers can be created, such as the ‘great eastern ranges corridor’ that stretches along the entire eastern Australian coast. Despite the call for greater connectivity, the current cabinet in the Netherlands is phasing out the ‘ecological main structure’, mainly to save money and because of opposition from the agricultural sector. The ‘great eastern ranges project’ does not have many financial resources. Rather, a local, project-based approach is used that offers small financial incentives to emphasize the ecological and economic benefits and to encourage landowners to get on board. The way in which the Netherlands’ policy on ecology is currently being communicated and implemented pales into insignificance when one compares it with the enthusiasm and passion displayed by Australian politicians who are active in this policy area at the state and local levels.

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