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Law and Conservation Conflicts

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Abstract

Conflict is a dominant notion within the legal discipline. In this chapter I review some roles that law and legal research play with respect to conservation conflicts, i.e., conflicts over the conservation of biodiversity. I first introduce briefly law and legal research and then discuss the respective roles of law and legal research with regard to conservation conflicts. Although I focus my discussion on Europe, many if not most of the general principles are applicable elsewhere.
Published as Chapter 8 in: Redpath SM, Gutierrez RJ, Wood KA, Young JC (eds), Conflicts in conservation:
navigating towards solutions, Cambridge University Press 2015, 108-118
Law and conservation conflicts
Arie Trouwborst
Tilburg Law School
Conflict is a dominant notion within the legal discipline. In this chapter I review some roles
that law and legal research play with respect to conservation conflicts. I first introduce
briefly law and legal research and then discuss the respective roles of law and legal research
with regard to conservation conflicts. Although I focus my discussion on Europe, many if not
most of the general principles are applicable elsewhere.
1. Law
Although most people have a general idea of what law is about, a universally accepted
definition is lacking. In essence, law is a set of agreements, of various origins and serving
various purposes. Those purposes include promoting and safeguarding various societal
interests, for example the equality and individual freedoms of citizens, and the protection of
health, safety and the natural environment including biodiversity. One representative
definition describes law as the sum of all rules and prescriptions for the promotion and
protection of societal interests that have been publicly (governmentally) established and/or
recognized and are, where necessary, enforced through penalties (Uylenburg and
Vogelezang-Stoute, 2008).
Law serves several functions. Principally, it provides norms and safeguards. Law
indicates what conduct is and what conduct is not permitted in society, and offers citizens
the possibility to seek compliance by others of the rules involved. Furthermore, law provides
a means for avoiding, mitigating and settling conflicts in society. Last but not least,
governments use law as an instrument to achieve all manner of policy objectives including
nature conservation objectives.
A major source of law is legislation (i.e. the issuing of written, binding rules) by
governments and other public entities at international, national, subnational, and lower
governmental levels. Other sources include judicial rulings (court decisions), and customary
law (unwritten rules created through practice). Within domestic legal systems, a distinction
can be drawn between private law (primarily concerned with relations between citizens or
other private parties like companies) and public law (primarily concerned with the
promotion of public interests). Within public law, in turn, a distinction can be made
between constitutional and administrative law (concerning inter alia the powers of
governmental bodies and the relationships between them) and criminal law. A final
distinction to bear in mind is that between substance, meaning the actual content of legal
rights and obligations, and procedure, meaning the ways in which rules come about, rules
are applied, and legal disputes are settled. At the international level, most law is generated
through the conclusion of binding agreements (treaties) between two or more national
governments. These commonly come by the names of treaty, convention, agreement or
protocol. A special, and for 28 European states particularly influential, branch of
international law is the law of the European Union (EU). EU law consists mainly of several
treaties and a large body of secondary legislation adopted on the basis of those treaties,
particularly in the form of (legally binding) regulations and directives.
The repeated use of the word binding above indicates the distinguishing feature of
law as compared with other, non-binding instruments in the wider domain often referred to
as policy. Policy instruments that are not legally binding include political declarations,
statements of intent, strategies, guidelines, recommendations, memoranda of
understanding and codes of conduct.
2. Legal research
As an academic discipline, law is somewhat odd. Explaining the nature of law itself is
certainly easier than explaining the nature of legal research, or legal scholarship as it is often
called. Readers are accordingly advised to adjust their expectations of the following
discussion to the reality that ‘[l]egal researchers have always struggled to explain the nature
of their activities to colleagues in other disciplines (Chynoweth, 2008: 28). My main
ambition here is to keep the struggle brief.
Legal research may be described as the process by which legal scholars seek to
define the meaning, boundaries, and impacts of existing or potential laws. It is, however,
not difficult to come across statements like the one by Smits (2012: 112-113) that legal
research knowledge is acquired in a way that is not strictly prescribed by research methods:
the legal discipline is primarily a practice, in which the community of academic colleagues
(the forum) decides on what is to be seen as reliable knowledge. Although the majority of
legal scholars probably does not share this view, it is a curious fact that in published legal
research ‘methodology is often largely absent or at least not made explicit’ (Van Hoecke,
2013: vi). There is an ongoing and lively debate regarding the methodologies applied within
the discipline of law, and the extent to which legal research actually qualifies as scientific
research (Ross, 1958; Chynoweth, 2008; Samuel 2008; Fisher et al., 2009; Siems and Mac
Síthigh, 2012; Smits, 2012; Van Hoecke, 2013). For present purposes it is not necessary,
however, to delve too deeply into this debate.
Many legal studies focus on some or other version of the question: ‘what is the law?’
The answer to such questions is chiefly pursued through the analysis of legislation, case law
(i.e., court decisions) and other legally relevant texts. Concretely, a scholarly study of a
particular set of rules could aim to do any or all of the following: (1) identify and compare
different interpretations of the rules; (2) identify and clarify ambiguities within the
applicable rules; (3) arrange the rules in a logical and coherent structure; (4) identify and
describe their relationship with other rules; or (5) determine the rules’ consequences in a
particular setting. Such interpretive, qualitative exercises are often referred to as doctrinal
research, or more informally as black-letter law research. Most studies are, however, not
strictly confined to black-letter analysis, even if the latter is often a major component. As
Chynoweth (2008: 30) observes:
‘In practice, even doctrinal analysis usually makes at least some reference to other,
external, factors as well as seeking answers that are consistent with the existing
body of rules. For example, an uncertain or ambiguous legal ruling can often be
more easily interpreted when viewed in its proper historical or social context, or
when the interpreter has an adequate understanding of the industry or technology
[or other non-legal context] to which it relates. As the researcher begins to take
these extraneous matters into account, the enquiry begins to move … in the
direction of interdisciplinary research. There comes a point … when the
epistemological nature of the research changes from that of internal enquiry into the
meaning of the law to that of external enquiry into the law as a social entity. This
might involve, for example, an evaluation of the effectiveness of a particular piece of
legislation in achieving particular social goals or an examination of the extent to
which it is being complied with.’
Hence, studies within the legal discipline often contain a mix of methodological
approaches. It is, for instance, ‘not uncommon that a legal researcher starts with an
historical introduction, then turns to an analysis of the relevant case law and finally engages
with socio-political considerations’ (Siems and Mac Síthigh, 2012: 668). At any rate, it will be
apparent that the process of analysis habitually employed in legal research ‘owes more to
the subjective, argument-based methodologies of the humanities than to the more
detached data-based analysis of the natural and social sciences’ (Chynoweth, 2008: 30).
Indeed, the evaluation of legislation’s effectiveness, mentioned above, is at the limits of
what the average legal academic feels comfortable doing. When it comes to actually
measuring such effectiveness with hard data, this is usually no longer done by legal scholars,
who tend to lack the capability (and desire) to seriously engage with statistics (e.g., Donald
et al., 2007; Baruch-Mordo et al., 2011).
As in most other disciplines, legal studies can be classified along a gradient between
fundamental and applied research. The former refers to research producing pure academic
knowledge concerning the content and operation of the law, primarily for a scholarly
readership. By contrast, applied research is produced primarily to suit the professional
needs of practitioners, policy makers and the like. It is typically conducted with a certain
purpose, which is often to facilitate a future change in the law itself or in the way it is
interpreted or applied. This type of research is sometimes referred to as law in context, law
reform research or socio-legal research.
Within the legal discipline, environmental law represents a particularly challenging
field, inter alia because of its particularly distinct international dimension and
interdisciplinary character, and because within the legal discipline it intersects many areas.
Each of these traits entails its own methodological challenges (Fisher et al., 2009).
Environmental law is essentially a thematically focused cross-section of all common
branches of law. Horizontally, it transcends the boundaries between private, constitutional,
administrative and criminal law. Vertically, it cuts across national and international legal
frameworks. A chemical plant emitting waste water containing contaminants into a river can
be taken as a small illustration here. These emissions may cause farmers downstream, using
river water to irrigate their crops, to sue the company for damages (private law). Another
issue is whether the plant holds a permit to emit contaminated waste water, and if so,
whether it is complying with the permit conditions (administrative law). In case it is violating
the rules, this may lead to prosecution (criminal law). Finally, if the competent
governmental authorities are lax when it comes to enforcement, this may constitute a
breach of the country’s international obligations, for instance under a transboundary river
treaty, or EU water quality standards. The strong international dimension of environmental
law hardly needs explanation, given the transboundary or even global nature of many
environmental problems. Indeed, many legal scholars specialize in international
environmental law (e.g., Birnie et al., 2009; Bodansky, 2010), whereas within the latter field
of expertise, international biodiversity or wildlife law has emerged as a research domain in
its own right (e.g., Bowman et al., 2010). Regarding the interdisciplinary nature of
environmental law, it suffices to note the difficulty of conducting a worthwhile study of an
environmental problem’s legal dimensions without at least a basic understanding of the
wider ecological and socio-economic context.
3. Law and conservation conflicts
Law will be a factor of some significance in respect of many actual conservation conflicts,
whereby the circumstances of each case will determine the law’s precise influence and
which of a conflict’s parties will be most favoured by it. That law does frequently play a role
in conservation conflicts appears to be affirmed in the scientific literature, which moreover
affirms that this role can be both negative and positive from a conservation point of view
(Young et al., 2005; Young et al., 2007; Madden, 2008; Young et al., 2010; Baruch-Mordo,
2011; Redpath et al., 2013).
Law influences conservation conflicts at many levels, ranging from conflicts between
individual farmers and protected area managers over what to do about particular crop-
raiding elephants, to conflicts between blocks of countries over the issue of international
ivory trade (Couzens, 2014). The law involved may be constitutional, administrative,
criminal, private and/or international law. What law is relevant will also be influenced by the
actors involved, which may include individual citizens, companies, local communities, NGOs,
government agencies, countries, or intergovernmental organizations. Relevant rules will
certainly not always be in the field of environmental or wildlife law, but may also concern
rules regarding, for instance, agriculture and fisheries, land-use planning, participation in
decision-making, and access to justice (for an example of the latter, see Epstein and Darpö,
2013). Occasionally the legal framework governing a conservation conflict appears, or is,
conflicting itself. An example concerns the long-standing conflict between reindeer herding
Saami people and conservationists over the management of wolves (Canis lupus), brown
bears (Ursus arctos), Eurasian lynx (Lynx lynx) and wolverines (Gulo gulo) in northern
Fennoscandia. International nature conservation law prescribes large carnivore
conservation in the area (Trouwborst, 2010; Epstein, 2013), whereas international human
rights law, specifically indigenous peoples’ rights, may be interpreted as prescribing large
carnivore control.
Altogether, the effect of law on conservation conflicts themselves is not
straightforward. On the one hand, law can cause or exacerbate such conflicts. This is the
case, for instance, when land-use planning legislation enables human activities that cause
adverse impacts on biodiversity (e.g. Madden, 2008), or vice versa when conservation
legislation is (perceived as) unduly restrictive of certain human activities (e.g. Heydon et al.,
2010). On the other hand, law can be instrumental in mitigating conservation conflicts and
minimizing their harmful effects on nature (i.e., it can be a tool for ‘conflict management’ as
described above). The primary means for doing so is legislation, which can take any shape,
ranging from compensation schemes for damages caused by wildlife to the prescription of
technical standards to be applied in agriculture, fisheries, mining and forestry operations.
Another means is the settlement of disputes in court. Courts settle concrete disputes by
issuing judgments that are binding for all parties to the dispute and, if delivered in last
instance, final. This is usually done by courts of administrative, criminal and private law at
various levels within domestic legal systems, and less frequently by dispute settlement
mechanisms at the international level, which include binding arbitration and courts such as
the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea
(ITLOS), and the Court of Justice of the EU. One high-profile example is the whaling dispute
between Australia and Japan that was recently ruled on by the ICJ.
Some care should be taken not to confuse the judicial settlement of a dispute with
the resolution of a conservation conflict. When a court has issued a decision in a legal
dispute and no further appeal is possible, the average legal academic would say the conflict
is resolved. This, however, obviously concerns the legal conflict only, that is, a disagreement
between parties over a legal issue, often involving opposing interpretations of particular
rules of law. The settlement of such a legal dispute is, evidently, not identical with the
resolution of a conservation conflict as defined previously. Court proceedings are generally
an ultimum remedium, and thus tend to provide a fairly reliable indicator of the tenacious
nature of the underlying conflict. Moreover, it is normal for at least one of the parties to a
legal dispute to be profoundly unhappy with the resulting judgment. In brief, even if they
resolve associated legal disputes, court decisions will usually leave the underlying
conservation conflicts unresolved. This squares with the sobering observation by Redpath et
al. (2013, p. 107) that ‘[t]o our knowledge, no conservation conflict has ever been fully
resolved in the sense that conflict is eliminated’. Indeed, whereas human-wildlife ‘impacts
can be resolved, for example, through legislation, mitigation, or technical solutions, conflicts
are more challenging to resolve’ (Redpath et al., 2013: 100). At any rate, by providing a
degree of certainty regarding the legal position, court decisions do reduce or eliminate one
point of contention.
4. Legal research and conservation conflicts
Legal research has an apparent contribution to make in the context of conservation
conflicts. This contribution concerns the mapping and understanding of conflicts’ legal
dimensions, as well as addressing conflicts themselves. The latter is done chiefly by charting
concrete legal pathways likely to further the prevention or management of particular
conservation conflicts, for instance the adoption of certain interpretations of applicable
legislation, or a legal instrument’s amendment. When studying a given conservation conflict,
legal scholars typically focus on questions like the following:
1) Which current legal instruments, and which of their provisions, are applicable?
2) What is the relevance of this law for the particular conflict?
3) In what ways can this law be interpreted, and which of these interpretations is/are
most compatible with the applicable rules governing interpretation?
4) What new legal solutions could be devised to manage the conflict (e.g. the
adoption of authoritative interpretations, the modification of existing legal
instruments, and/or the adoption of new ones)?
I provide here a few examples to illustrate the diversity of published research
addressing conservation conflicts within the legal discipline. Some studies focus broadly on
law and conservation conflicts generally (e.g. Madden, 2008). Other legal publications
address a particular theme, for instance bycatch of seabirds in fisheries (Trouwborst, 2008),
or particular (groups of) species such as elephants and whales (Couzens, 2014). Yet other
studies detail the legal dimensions of one particular conflict, for instance concerning wolves
in Wisconsin (Sanders, 2013), or a single killer whale (Orcinus orca) marooned in the
Netherlands (Trouwborst et al., 2013a). Besides, all sorts of combinations of the above
angles occur, a representative instance being a recent legal analysis centering on the theme
of species reintroductions under EU law, using the Eurasian beaver (Castor fiber) as a case
study (Pillai and Heptinstall, 2013).
Finally, it is appropriate that I provide the reader with a brief impression of the
actual content of such research. I do this with reference to several studies that focus on the
application of the EU’s 1992 Directive 92/43/EEC on the Conservation of Natural Habitats
and of Wild Fauna and Flora (Habitats Directive) to the conservation and management of
wolves in EU member states. Wolves are listed by default in the Directive’s Annex II (species
for which ‘Special Areas of Conservation’ must be designated as part of the Natura 2000
network) and Annex IV (‘strictly protected species’), and these legal regimes apply in most
member states (see Trouwborst, 2010; Epstein, 2013). Article 12 of the Directive requires
these states to ‘take the requisite measures to establish a system of strict protection’ for
wolves, including the institution and enforcement of domestic prohibitions on killing and
capturing. Exemptions (derogations) from these prohibitions may only be allowed when
three conditions are met: (1) the derogation is made for one of several purposes
enumerated in Article 16(1) of the Directive; (2) there is ‘no satisfactory alternative’; and (3)
the derogation is ‘not detrimental to the maintenance of the populations of the species
concerned at a favourable conservation status in their natural range’. Several interpretation
questions regarding the meaning of terms like ‘satisfactory alternative’ and ‘favourable
conservation status’ are still outstanding.
Within this context Sweden offers an apt example of a conservation conflict,
between proponents and opponents of wolf culling, where legal issues have taken centre
stage. The issue of contention is Sweden’s national wolf policy, which has in recent years
included a cap on the national wolf population and allowed quota hunting. Much of the
legal debate has revolved around the question what scope, if any, there is for wolf hunting
under Article 16(1)(e) of the Habitats Directive, especially given the unfavourable
conservation status of the wolf population involved. Provided the second and third of the
aforementioned conditions are also met, Article 16(1)(e) permits derogations in order ‘to
allow, under strictly supervised conditions, on a selective basis and to a limited extent, the
taking or keeping of certain specimens … in limited numbers specified by the competent
national authorities’. The Swedish government has come in conflict with the European
Commission over this issue, whose task it is to monitor compliance with EU law by the
member states. In 2011, the Commission opened a so-called infringement procedure against
Sweden, a procedure that can end up before the Court of Justice of the EU. In parallel,
national court proceedings in Sweden have focused on the same question. Several scholarly
studies within the legal discipline have been dedicated to describing, comparing and
assessing the legal merits of the opposing interpretations of the Habitats Directive by the
Swedish government and the European Commission, and of the position taken hitherto by
the Swedish judiciary (Darpö, 2011; Epstein and Darpö, 2013; Epstein, 2013).
Other legal studies that can serve as illustrations in the same European wolf context
concern the Netherlands, one of the last European countries expected to be naturally
recolonized by wolves (Trouwborst and Bastmeijer, 2010; Bastmeijer and Trouwborst, 2013;
Trouwborst et al., 2013b; Trouwborst, 2014b). One of the steps taken by the competent
Dutch authorities in the face of this expected wolf comeback has been the commissioning of
a legal research report to map the bandwith of available policy options regarding wolf
management (Trouwborst et al., 2013b). Clearly, initial clarification of the limits imposed by
the law may well avoid unnecessary discussions and litigation later on. The questions
addressed in the report include the following:
1) What is the legal status of wolves returning to the Netherlands?
2) What lawful options exist for dealing with wolves preying on livestock?
3) Is a zoning policy, whereby wolves are tolerated in designated parts of the country
and removed from others, a legally viable option?
4) At what stage of recolonization are Special Areas of Conservation to be designated
for wolves?
5) What is the legal position of wolf-dog hybrids and of measures to counter
hybridization?
Going into detail as regards the answers to the above questions is not necessary for
present purposes, nor feasible within the scope of the present chapter. However, it suffices
to concisely address the last question regarding hybridization between wolves and domestic
dogs. A recent study dedicated to this issue (Trouwborst, 2014a) concludes that addressing
hybridization through preventive and mitigation measures is in conformity with the
obligations of EU member states under the Habitats Directive, and may indeed be essential
in order to comply with these obligations. This includes dealing with feral and stray dogs and
captive hybrids, and removing hybrid animals from the wild. At the same time, it appears
that the national prohibitions on the killing and capturing of wolves and other strictly
protected species, as prescribed by the Directive, also cover free-ranging wolf-dog hybrids.
This entails that the removal of such hybrid animals from the wild is subject to the rules
concerning derogations from strict protection. Like the open-ended language of Article
16(1(e) of the Directive cited above when discussing the Swedish example, this intricate and
seemingly paradoxical state of affairs concerning wolf-dog hybrids is a good example of the
kind of issue that intrigues legal scholars.
5. Concluding remarks
It is clear that the role of law in respect of conservation conflicts should not be
underestimated, and that legal research has a meaningful contribution to make.
Nevertheless, the legal discipline’s importance should not be overestimated either.
Conservation conflicts ‘arise from a wide range of interacting factors’ (Young et al., 2010:
3982), with law being just one of an often complex mix of biological, social, historical, legal,
geographic, political, economic, ethical, institutional, financial, cultural, and management
factors’ (Madden, 2008: 191). It is appropriate to conclude the chapter on this note, the gist
of which is adequately captured in the postscript of an international law textbook (Lowe,
2007: 290):
‘Lawyers have a contribution to make. They offer one way of going about resolving
some of the most crucial problems that face the world. But it is only one way among
many. There are many times when it is much better to call upon a politician, or a
priest, or a doctor, or a plumber’ or, in the present context, a government agency,
an ecologist, an economist or a negotiator.
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... Regarding the law, we employ standard international and EU legal research methodology (Brown and Kennedy 2000;Stone Sweet 2011;Trouwborst 2015b). This methodology consists, in particular, of the identification and analysis of relevant legal instruments and their provisions, including their interpretation according to the applicable rules from the international law of treaties as codified in the 1969 Convention on the Law of Treaties (Vienna Convention), and as refined with regard to EU law by the CJEU, while also taking account of guidance provided by the European Commission (see ''The rules of the interpretation game'' section). ...
... Large carnivores in Europe: a special challenge Across the globe, large carnivores present a special set of conservation issues, including from a legal perspective (Trouwborst 2010(Trouwborst , 2015bTreves et al. 2015). In Europe, wolves, brown bears, Eurasian lynx and wolverines are all covered by the Habitats Directive, although their precise legal status varies from one member state to another (see the detailed maps at www.tilburguniversity.edu/iuscarnivoris). ...
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... Besides direct opposition to the norms (e.g., Holmes, 2013;Bennett and Dearden, 2014), implementation deficits and non-compliance can erode the legitimacy of conservation legislations, triggering distrust in managing authorities and undermining goals, even leading to conservation conflicts (e.g., Parenteau, 2004;Young et al., 2007;Madden, 2008;Trouwborst et al., 2015). Understanding the impacts of implementation deficits and non-compliance on stakeholders emerges therefore as a matter of concern in pursuing effective conservation policies (Solomon et al., 2015). ...
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"The development of international wildlife law has been one of the most significant exercises in international law-making during the last fifty years. This second edition of Lyster's International Wildlife Law coincides with both the UN Year of Biological Diversity and the twenty-fifth anniversary of Simon Lyster's first edition. The risk of wildlife depletion and species extinction has become even greater since the 1980s. This new edition provides a clear and authoritative analysis of the key treaties which regulate the conservation of wildlife and habitat protection, and of the mechanisms available to make them work. The original text has also been significantly expanded to include analysis of the philosophical and welfare considerations underpinning wildlife protection, the cross-cutting themes of wildlife and trade, and the impact of climate change and other anthropogenic interferences with species and habitat. Lyster's International Wildlife Law is an indispensable reference work for scholars, practitioners and policy-makers alike"--Provided by publisher.
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In a context of changing times and current debate, this book discusses the aims, methods and organization of legal scholarship. It assesses the recent turn away from doctrinal research towards a more empirical and theoretical way of legal investigation and offers a fresh perspective on what it is that legal academics should deal with and how they should do it. The book also considers the consequences which follow for the organization of the legal discipline by universities and uses this context to discuss the key questions of the internationalization of law schools, quality assessments, legal education and the research culture.
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Hybridization with domestic or alien species poses a threat to many species of wild fauna. However, hybridization is not explicitly addressed in the provisions of the principal international legal instruments on nature conservation. This article reviews the relevance, scope and substance of wildlife protection obligations under the Bern Convention on European Wildlife and Natural Habitats and the European Union's Habitats Directive with respect to this issue. The problem of wolf-dog hybridization is singled out as a case study. The article concludes that addressing hybridization through preventive and mitigation measures is in conformity with the obligations of States under the Convention and the Directive, and may indeed be essential in order to comply with these obligations. In the wolf-dog context, this includes dealing with feral and stray dogs and captive hybrids, and removing hybrid animals from the wild. At the same time, it appears that the national prohibitions on the killing and capturing of wolves and other strictly protected species, as prescribed by the Convention and the Directive, also cover free-ranging wolf-dog hybrids and similar hybrids living in the wild. This entails that the removal of such hybrid animals from the wild is subject to the rules concerning derogations from strict protection. These rules, however, do not appear to stand in the way of such removal. The article's central recommendation is for the Standing Committee of the Bern Convention and the European Commission to adopt express guidance concerning hybridization.