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Abstract

The EU Habitats Directive is a key biodiversity conservation instrument. It contains legal obligations for the 28 EU member states in order to safeguard a ‘favourable conservation status’ (FCS) for selected species and habitat types. The crucial FCS concept itself, however, remains subject to considerable confusion regarding its proper interpretation and operationalization, impairing the Directive’s effective implementation. Diminishing this confusion is the purpose of this review. It focuses specifically on large carnivores—wolf (Canis lupus), brown bear (Ursus arctos), Eurasian lynx (Lynx lynx) and wolverine (Gulo gulo). These pose particular challenges, given their low densities, transboundary populations, and human-wildlife conflict potential. Large carnivores are also the only species for which specific guidance has been adopted by the European Commission—and subsequently contested. Our methodology combines legal analysis with an understanding of the species’ ecology and associated social, economic and cultural dimensions. We analyze the methods and processes through which EU law is interpreted, implemented, and enforced, by member states, European Commission, and EU Court of Justice—which is the ultimate authority regarding EU law interpretation. On that basis, we engage three particularly complex interpretation questions which are also of great practical significance: (1) the appropriate scale to achieve FCS (national or transboundary population level); (2) the respective roles of demographic, genetic and ecological factors in determining FCS; and (3) the use of extinction versus carrying capacity as benchmark. Regarding these questions, we identify approaches that are workable and effective, as well as likely to be endorsed by the EU Court.
REVIEW PAPER
Interpreting ‘favourable conservation status’ for large
carnivores in Europe: how many are needed
and how many are wanted?
Arie Trouwborst
1
Luigi Boitani
2
John D. C. Linnell
3
Received: 19 May 2016 / Revised: 26 August 2016 / Accepted: 8 October 2016 /
Published online: 21 October 2016
ÓThe Author(s) 2016. This article is published with open access at Springerlink.com
Abstract The EU Habitats Directive is a key biodiversity conservation instrument. It
contains legal obligations for the 28 EU member states in order to safeguard a ‘favourable
conservation status’ (FCS) for selected species and habitat types. The crucial FCS concept
itself, however, remains subject to considerable confusion regarding its proper interpre-
tation and operationalization, impairing the Directive’s effective implementation. Dimin-
ishing this confusion is the purpose of this review. It focuses specifically on large
carnivores—wolf (Canis lupus), brown bear (Ursus arctos), Eurasian lynx (Lynx lynx) and
wolverine (Gulo gulo). These pose particular challenges, given their low densities,
transboundary populations, and human-wildlife conflict potential. Large carnivores are also
the only species for which specific guidance has been adopted by the European Com-
mission—and subsequently contested. Our methodology combines legal analysis with an
understanding of the species’ ecology and associated social, economic and cultural
dimensions. We analyze the methods and processes through which EU law is interpreted,
implemented, and enforced, by member states, European Commission, and EU Court of
Justice—which is the ultimate authority regarding EU law interpretation. On that basis, we
engage three particularly complex interpretation questions which are also of great practical
significance: (1) the appropriate scale to achieve FCS (national or transboundary popula-
tion level); (2) the respective roles of demographic, genetic and ecological factors in
determining FCS; and (3) the use of extinction versus carrying capacity as benchmark.
Communicated by Marcelo F. Tognelli.
This article belongs to the Topical Collection: Biodiversity protection and reserves.
&Arie Trouwborst
a.trouwborst@tilburguniversity.edu
1
Department of European & International Law, Tilburg Law School, Tilburg University,
PO Box 90153, 5000 LE Tilburg, The Netherlands
2
Department of Biology and Biotechnology, University of Rome ‘La Sapienza’, P.le Aldo Moro 5,
00185 Rome, Italy
3
Norwegian Institute for Nature Research, PO Box 5685, Sluppen, 7485 Trondheim, Norway
123
Biodivers Conserv (2017) 26:37–61
DOI 10.1007/s10531-016-1238-z
Content courtesy of Springer Nature, terms of use apply. Rights reserved.
Regarding these questions, we identify approaches that are workable and effective, as well
as likely to be endorsed by the EU Court.
Keywords Favourable conservation status FCS Habitats Directive Large carnivores
Law Transboundary cooperation
Introduction
For a conservation target to be meaningful there must be a clear way of knowing when the
target is reached. If there is not, this affects both the choice of conservation measures taken
to achieve the target and the public perceptions of this process. However, this seemingly
simple idea is challenging to operationalize in reality. This significant problem currently
affects the main nature conservation regime in the European Union (EU), namely Directive
92/43 on the Conservation of Natural Habitats and of Wild Fauna and Flora of 1992 (the
Habitats Directive). Although the regime seeks to achieve a ‘favourable conservation
status’ (FCS) for certain European species and habitat types, the precise meaning of this
term is subject to considerable confusion and controversy. In what follows, we try to
explain and diminish this confusion and controversy, adopting the perspective of the large
carnivore species wolf (Canis lupus), brown bear (Ursus arctos), Eurasian lynx (Lynx lynx)
and wolverine (Gulo gulo). We begin by introducing the context, objective, outline, and
broader relevance of our analysis.
Context: confusion concerning FCS concept impairs effectiveness of EU
nature conservation law
The Habitats Directive is the central piece of international nature conservation legislation
within the EU. It sets out legally binding obligations for the 28 EU member states. These
primarily concern the designation and protection of special areas of conservation (SACs)
for listed species and habitat types, as part of the Natura 2000 protected area network, as
well as the generic protection of listed species. The measures taken by member states are to
ensure the maintenance or achievement of a FCS for the species and habitats involved. The
Habitats Directive complements, and forms an integrated legal framework together with
Directive 2009/147/EC on the Conservation of Wild Birds of 1979 (the Birds Directive),
which contains similar obligations concerning the EU’s wild birdlife.
Due to the clear limits it imposes on member states’ domestic discretion and its high
degree of enforceability at the national and the EU level (see ‘How interpretation ques-
tions reach the EU Court’ section), the regime composed by the two Directives is gen-
erally regarded as an influential legal framework which is highly effective when compared
to other international legal instruments for biodiversity conservation (Verschuuren 2003;
Bowman et al. 2010; Fleurke and Trouwborst 2014; Born et al. 2015; Schoukens and
Bastmeijer 2015; Bastmeijer and Trouwborst 2015; Epstein et al. 2016). Many species
have profited from the protection of their habitat—nearly one-fifth of EU land territory is
currently included in the Natura 2000 network—and/or the restrictions placed on their
exploitation or persecution (Deinet et al. 2013). Examples where the Directives’ impact on
the conservation status of species can be clearly appreciated include many bird species
(Donald et al. 2007; Sanderson et al. 2015; European Environment Agency 2015) and large
38 Biodivers Conserv (2017) 26:37–61
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carnivores like wolves and brown bears (Fleurke and Trouwborst 2014; Chapron et al.
2014).
Even so, the implementation of the regime has not been flawless, due inter alia to the
Directives’ delayed or faulty transposition into national law, insufficient law enforcement
at the domestic level—for instance regarding the illegal killing of species protected
under the Directives, such as wolves in southern Spain (Trouwborst 2014c;Lo
´pez-Bao
et al. 2015)—and also due to confusion concerning the interpretation of certain terms and
concepts contained in the Directives’ provisions (Jones 2012; Wandesforde-Smith and
Watts 2014; Born et al. 2015). The meaning of several of these terms and concepts has
been clarified over time, chiefly through the rulings of the Court of Justice of the EU
(CJEU), and also through the development of guidance documents by the European
Commission. However, uncertainty persists in some key respects. The aforementioned
notion of FCS is one crucial concept which continues to be subject to confusion con-
cerning its proper interpretation and operationalization (Epstein et al. 2016; Epstein
2016).
FCS constitutes a benchmark of key significance to the practical implementation of
member states’ obligations under the Habitats Directive regarding site protection, generic
species protection and reporting (see ‘A crucial yardstick for the application of the
Habitats Directive’ section). The European Commission—the EU body charged with
facilitating and monitoring the implementation of the Directives by the member states—
has developed a measure of technical guidance concerning the concept (European Com-
mission 2007; Linnell et al. 2008; Evans and Arvela 2011). The CJEU has touched upon
the concept in several cases, albeit never comprehensively. EU member states have
undertaken individual attempts to operationalize the concept. Finally, aspects of the FCS
concept have been the subject of academic studies (Mehta
¨la
¨and Vuorisalo 2007;
Trouwborst 2014b; Epstein et al. 2016; Epstein 2016).
Nevertheless, the operationalization of FCS continues to be the subject of significant
confusion, mainly concerning the proper way to set ‘favourable reference values’
(FRVs), and particularly how to determine what constitutes a ‘favourable reference
population’ (FRP) in concrete instances for different species. Important questions in this
regard concern the scale at which FCS should be measured (Trouwborst 2014b; Epstein
2016); the role of demographic and genetic factors in measuring FCS (Laikre et al.
2009; Epstein et al. 2016); and whether FCS should be measured upwards from
extinction or downwards from carrying capacity (Epstein et al. 2016). This lack of
clarity has fed controversies over whether or not FCS has been achieved for particular
populations—the Scandinavian wolf population being a case in point (Chapron 2014;
Epstein 2016).
Such uncertainty and controversy potentially hamper the effective application of the
Habitats Directive and the achievement of the Directive’s overall objective of European
biodiversity conservation. Indeed, the approaches currently employed by EU member
states to operationalize FCS are widely disparate (McConville and Tucker 2015). In
addition, a recent study reported a worryingly poor correlation for many species between
their red list status and their conservation status as reported by EU member states under the
Habitats Directive (Moser et al. 2016). Because these controversies can have legal con-
sequences for member states, they contribute to many of the conflicts surrounding biodi-
versity conservation in general (Hiedanpa
¨a
¨and Bromley 2011; Redpath et al. 2013;
Epstein 2016).
Biodivers Conserv (2017) 26:37–61 39
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Objective and outline
Understanding and diminishing this confusion and controversy regarding the FCS concept
is our overall objective in this paper, in order to promote the Habitats Directive’s effective
application in practice. The analysis below unfolds along the following lines.
Firstly, even if the application of the Habitats Directive is influenced by a mix of
ecological, socio-economic and cultural factors, we point out that the proper understanding
of FCS is ultimately a legal question with a legal answer (‘‘The FCS concept under the
Habitats Directive’ section). Secondly, appreciating the reasons why the confusion in this
regard persists and finding ways of reducing it both hinge upon an understanding of the
methods and processes through which EU law is interpreted, implemented, and enforced
(provided in ‘Interpreting EU law: a nuanced affair’ section). Thirdly, based on the above,
we analyze selected issues concerning the setting of favourable reference values for large
carnivores. Quantifying FCS for concrete wildlife populations is an intricate task but is
nonetheless important from a practical conservation and management perspective. Our
focus on large carnivores serves to illustrate the species-specific approach required when
applying the FCS concept. Large carnivores are challenging species to conserve, conflict-
prone and occurring in transboundary populations. Moreover, large carnivores are the only
species group for which specific guidance concerning the operationalization of FCS has
been endorsed by the European Commission (Linnell et al. 2008). Certain elements of this
guidance regarding FCS for large carnivores have subsequently been contested (Laikre
et al. 2009; Epstein et al. 2016). After exploring these and other special traits of large
carnivores (‘FCS for large carnivores in Europe’ section), we focus on three hitherto
controversial questions regarding the interpretation of the FCS concept, namely the
aforementioned question of scale (‘The appropriate scale(s) to achieve FCS for large
carnivores’ section), the respective roles of demographic, genetic and ecological factors
(‘Demographic, genetic and ecological factors’ section), and the question of avoiding
extinction versus restoring to carrying capacity as benchmarks for FCS (‘‘Extinction versus
carrying capacity as benchmarks’ section). Finally, we provide a synopsis of our findings
and some concluding observations (‘Conclusions’ section).
This is a classic example of a topic where theory meets practice, and science meets
policy –and indeed law. We are aware that this requires treading carefully. Law has been
described as a ‘means by which the distinction between nature and culture is actively
produced, maintained, and complicated’ (Delaney 2003; Ojalammi and Blomley 2015).
That is why our analysis incorporates the distinct European context where nature and
culture are thoroughly intertwined, where coexistence rather than separation of humans and
wildlife is the dominant conservation paradigm, and where biodiversity conservation
legislation reflects a balance struck between ecological, socio-economic and cultural values
(Chapron et al. 2014; Boitani and Sutherland 2015; Boitani and Linnell 2015; Linnell et al.
2015; Carter and Linnell 2016).
Broader relevance
The questions we consider are not exclusive to the EU, and may arise in many other
settings around the world where conservation targets are set. Furthermore, the FCS concept
in the Habitats Directive is modeled on, and largely coincides with, the concept of FCS as
incorporated and defined in the 1979 Convention on the Conservation of Migratory Species
40 Biodivers Conserv (2017) 26:37–61
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of Wild Animals (the Bonn Convention), a global Convention with 123 contracting parties.
Thus, elements of the analysis below will be of relevance beyond Europe.
Method
In pursuing our objective, we combine legal analysis with knowledge and insights
regarding the underlying ecology of the species involved and regarding the material and
social aspects of the conflicts they cause with human interests.
Regarding the law, we employ standard international and EU legal research method-
ology (Brown and Kennedy 2000; Stone Sweet 2011; Trouwborst 2015b). This method-
ology 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 inter-
pretation game’ section). It is also relevant that all EU member states and the EU itself are
contracting parties to the 1979 Convention on the Conservation of European Wildlife and
Natural Habitats (Bern Convention), and that the Habitats Directive must therefore be
interpreted consistently with that Convention, especially in view of the fact that the Birds
and Habitats Directives are the EU’s chief instruments for the implementation of the Bern
Convention.
Legal methodology is still a relatively unfamiliar feature within the conservation
biology literature (the scarce examples include Trouwborst 2015a; Trouwborst et al. 2015;
and Epstein et al. 2016). It is generally agreed, however, that law is one of the many
dimensions of the multidisciplinary endeavour that is conservation biology—and a crucial
dimension at times (Freyfogle 2006). In any event, the only meaningful way to address
legal issues is through the wordy process of legal analysis.
The FCS concept under the Habitats Directive
A crucial yardstick for the application of the Habitats Directive
The FCS concept pervades the Habitats Directive. The ‘conservation status’ of a species is
defined in the Directive as the sum of the influences acting on the species concerned that
may affect the long-term distribution and abundance of its population within the European
territory of the EU member states [Article 1(i)]. According to the same provision, this
status is taken as ‘favourable’ when:
(I) ‘Population dynamics data on the species concerned indicate that it is maintaining
itself on a long-term basis as a viable component of its natural habitats, and
(II) The natural range of the species is neither being reduced nor is likely to be
reduced for the foreseeable future, and
(III) There is, and will probably continue to be, a sufficiently large habitat to maintain
its populations on a long-term basis.’
Measures taken by member states pursuant to the Directive shall be designed to
maintain or restore, at favourable conservation status, natural habitats and species of wild
Biodivers Conserv (2017) 26:37–61 41
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fauna and flora of Community interest, meaning those habitats and species listed in the
Directive’s Annexes [Article 2(2)]. At the same time, these measures must take account of
economic, social and cultural requirements and regional and local characteristics [Article
2(3)].
As regards site conservation, Annex II of the Directive lists species whose conservation
requires the designation of SACs as part of the Natura 2000 network. The designation and
protection of these sites shall enable the habitats of the listed species to be maintained or,
where appropriate, restored at a favourable conservation status in their natural range
[Article 3(1)]. As regards generic species protection, member states must ensure that the
exploitation, if any, of the species listed in Annex V of the Directive is compatible with
their being maintained at a favourable conservation status [Article 14(1)]. Furthermore,
the killing or capturing of strictly protected species, listed in Annex IV, may only be
authorized in exceptional circumstances, one precondition being that the exemption from
strict protection (‘derogation’) concerned is not detrimental to the maintenance of the
populations of the species concerned at a favourable conservation status in their natural
range [Article 16(1)]. As regards monitoring, finally, member states have a general obli-
gation to undertake surveillance of the conservation status of the species (and habitats)
covered by the Directive (Article 11).
The meaning of FCS: a legal question with a legal answer
Although perhaps not all stakeholders involved in the implementation of the Habitats
Directive would feel this way, overall the Directive’s provisions are actually characterized
by relatively low ambiguity when compared to other legal instruments (Laffan and
O’Mahoney 2004). The Directive sets out in relatively clear terms what is expected of
member states—this arguably being one of the keys to its success (Bastmeijer and
Trouwborst 2015). At the same time, there has to be enough flexibility in some of the key
terms and concepts used in the Directive so that it can be implemented with a reasonable
degree of consistency across a variety of species and habitats in a variety of regional and
local contexts. Clearly, FCS is one such concept and the challenge is to strike a sensible
balance between uniformity and flexibility through repeated acts of interpretation.
The striking of this balance for FCS and for similar concepts—such as ‘significant
effect’ under the Habitats Directive, or ‘recovery’ under the US Endangered Species Act
(Verschuuren 2003; Treves et al. 2015)—is ultimately a task of public authorities, and
most especially of judges, with scientists and other stakeholders assigned an indirect role at
best. The meaning of FCS is, in other words, ultimately a legal question with a legal
answer. We believe that much confusion in the debate concerning FCS derives from
ignoring this.
Interpreting EU law: a nuanced affair
Little room for bold statements concerning ‘the correct interpretation’
When interpreting EU law, the only firm footholds are provided by the legally binding
provisions (i.e., not the preambles) of the legislative acts themselves and the case law of
the CJEU. Accordingly, firm statements on the correct interpretation of particular provi-
sions in the Habitats Directive are really only justified when the text of the Directive’s
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substantive provisions leaves no room for doubt, or when the issue has been unambigu-
ously settled by the CJEU, which has the final say about the interpretation of EU law. In all
other contexts—including the various interpretive issues surrounding the FCS concept
dealt with in this paper—arguments may be submitted for and against particular inter-
pretations, and we will proceed to do so, but no correct interpretation can be claimed. It is
the case, however, that knowledge of the interpretive toolbox used by the CJEU in past
decisions enables informed speculation regarding the interpretations that would most likely
be adopted were the Court to be confronted with the interpretive issues concerned (Brown
and Kennedy 2000; Stone Sweet 2011).
The rules of the interpretation game
The point of departure is the Vienna Convention. Treaty provisions must be interpreted in
good faith, according to the ordinary meaning of their terms in light of a treaty’s objec-
tives, while taking into account any subsequent agreements or subsequent practice by the
parties regarding the interpretation of the treaty or the application of its provisions, as well
as any other relevant rules of international law (Vienna Convention, Article 31). Good
examples of other such relevant rules are the aforementioned Bern and Bonn Conventions
and the European Landscape Convention from 2000 (Bowman et al. 2010; Jorgensen et al.
2016; Trouwborst 2016b). When interpretation according to these guidelines still leaves
the meaning of a provision ambiguous or obscure or leads to a result which is manifestly
absurd or unreasonable, recourse may be had to supplementary means, including the
preparatory work of the treaty and the circumstances of its conclusion (Vienna Conven-
tion, Article 32). The Habitats Directive is not itself a treaty, but an instrument of sec-
ondary EU law based on the 1958 Treaty on the Functioning of the European Union
(TFEU). At any rate, the interpretive approaches habitually applied by the CJEU with
respect to secondary EU law closely mirror the Vienna Convention’s rules.
The teleological (objective-driven) approach has been a particularly influential inter-
pretive method in past CJEU case law concerning the Habitats Directive, and is likely to
guide the Court in the future. This approach entails an interpretation of provisions in light
of the Directive’s Article 2, which states that the aim of this Directive shall be to contribute
towards ensuring biodiversity through the conservation of natural habitats and of wild
fauna and flora within the EU, and furthermore that measures taken under the Directive
shall be designed to maintain or restore species and habitats at FCS. The Court has thus
interpreted exceptions to the protection of species narrowly, especially in the context of
derogations from strict protection under Article 16 of the Directive (e.g., CJEU 20 October
2005, Case C-6/04; CJEU 14 June 2007, Case C-342/05).
A closely related interpretational rule is that of effet utile, or useful effect, which is also
a regular feature in the Court’s judgments. This favours those interpretations which give
provisions of EU law their fullest effect and maximum practical impact. This may be
illustrated with reference to Article 6(3) of the Habitats Directive, which states that a plan
or project that might be harmful to a Natura 2000 site may in principle be authorized only
if the competent member state authority has ascertained that it will not adversely affect the
integrity of the site. According to the CJEU, that is the case where no reasonable scientific
doubt remains as to the absence of such effects (CJEU 7 September 2004, Case C-127/02).
A less stringent authorisation criterion, the Court explained, could not as effectively ensure
the fulfilment of the objective of site protection intended under Article 6.
As with other courts, the work of the CJEU is case-specific and does not provide an
ideal arena for science debates. Which is to say that in a given case the Court will generally
Biodivers Conserv (2017) 26:37–61 43
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work with the best available scientific information as presented to it by the parties to the
underlying dispute. This has obvious limitations. Likewise, the case law of the Court
evolves over time, along with changing scientific insights. Regarding scientific uncer-
tainty, the CJEU has repeatedly made it plain that the Habitats Directive is to be
interpreted in light of the ‘precautionary principle’, which errs on the side of caution
in situations of uncertainty, in the best interest of the species and habitats involved (Case
C-127/02; see also Article 191(2) of the Treaty on the Functioning of the European
Union). Of course, what is in the best interest of a species will vary according to the
specific circumstances of a case, and will be obvious in some cases and subject to debate
in others. Finally, a word of caution is appropriate regarding the role of guidance
documents developed by or under the auspices of the European Commission. When
developing a judgment the CJEU may rely on relevant guidance provided by the
Commission regarding the application of the Habitats Directive, although it will not
always do so, and may indeed adopt interpretations which contradict—and thereby
overrule—Commission guidance (Darpo
¨and Epstein 2015b).
In any event, when discussing the interpretation of EU law it is crucial to clearly,
carefully, and consistently distinguish between the law as it stands (lex lata), and the law as
one thinks it should be interpreted (lex ferenda). This need is all the greater when, as in our
paper, the primary aim is clarification, and the reduction of confusion.
How interpretation questions reach the EU Court
Interpretive questions can reach the CJEU in two ways, one corresponding with a
European and the other a national route. The first involves the so-called infringement
procedure under Article 258 of the TFEU, a procedure that can be instigated by the
European Commission when it believes that a member state is not complying with its
obligations under EU law. The allegation of non-compliance is often triggered by the
submission of a complaint to the Commission by one or more concerned NGOs. After
various rounds of communication between the Commission and the member state, the
former may decide to submit the dispute to the CJEU. Most infringement allegations are,
however, negotiated to a conclusion before reaching the Court stage. The second pro-
cedure involves a preliminary ruling under Article 267 of the TFEU, as when a national
court is in doubt regarding the correct answer to a question of EU law and refers that
question to the CJEU for clarification. If no further appeal is possible in the domestic
proceedings involved, the national court is actually obliged to refer the matter to the EU
Court. The national proceedings are then put on hold until the EU Court issues its ruling,
which the national court then uses to reach its verdict. Article 267 of the TFEU thus
provides a mechanism, from one judge to another, to promote a uniform application of
EU law across all member states.
It is conceivable that in the future either or both of these routes will further clarify the
correct interpretation of the FCS concept. A judgment shedding further light on FCS
regarding large carnivores might be forthcoming, for example, if the pending infringement
procedure against Sweden concerning its wolf policy is actually submitted to the Court, or
if a preliminary ruling is requested from the CJEU by the Swedish judiciary (Darpo
¨and
Epstein 2015a,b; Epstein 2016). Yet, it is uncertain if and when such a scenario will play
itself out. In the meantime, member states are faced with the need to apply the FCS
concept, both as a general conservation objective and specifically in connection with their
obligations concerning area protection, species protection, and Article 17 reporting. And
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this is where guidance provided by the European Commission has a crucial role to play;
guidance that draws on the best available science and experience.
The present review is driven by the evident need to assist member states, amidst the
aforementioned fundamental uncertainty, in identifying well-reasoned approaches to
operationalize the FCS concept in a manner that is sufficiently consistent, workable, and
likely to be endorsed by the CJEU.
FCS for large carnivores in Europe
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 2010,2015b; Treves 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). Legal interpretation
questions concerning these species and the Directive include the protection status of
large carnivores expanding their populations into countries from which they had disap-
peared long ago (Trouwborst 2010,2014b), or did not previously occur (Trouwborst
et al. 2015); the protracted and still ongoing national and European legal disputes
regarding Sweden’s wolf policy (Darpo
¨2011; Michanek 2012; Epstein 2013; Epstein and
Darpo
¨2013; Darpo
¨and Epstein 2015a,b; Epstein 2016); the uncertain geographic
boundaries between different legal protection regimes in parts of Europe, particularly
Spain (Trouwborst 2014c); the use of zoning as a large carnivore management tool
(Trouwborst 2014b); the legal status of wolf-dog hybrids (Trouwborst 2014a); and the
impact of border fences on carnivores within Natura 2000 sites (Linnell et al. 2016;
Trouwborst et al. 2016).
Large carnivores also clearly illustrate why the way in which FCS is made operational
can vary from one species (group) to another, such that what is appropriate regarding
European hamsters (Cricetus cricetus), for example—dealt with by the CJEU in 2011
(CJEU 9 June 2011, Case C-383/09)—may be quite inappropriate for wolverines. One of
the fundamental characteristics of large carnivores is that they naturally occur at low
population densities and move over vast areas, with individuals typically having home
ranges varying from 100 to 1000 km
2
, and with populations tending to stretch across
many sub- and inter-national jurisdictional boundaries (Linnell et al. 2001; Linnell and
Boitani 2012; Chapron et al. 2014) As a consequence the population concept for large
carnivores is meaningless on small scales of less than many thousands, or even many
tens of thousands, of square kilometers. In Europe, the four large terrestrial predators
currently occur in 33 distinct (sub)populations, no less than 28 of which are trans-
boundary, i.e., shared between two or more countries (for the individual species the
proportion of transboundary populations is 8 of 10 for wolves and bears, 10 of 11 for
lynx and 2 of 2 for wolverines) (Kaczensky et al. 2013; Chapron et al. 2014). Large
scale ecological processes are always associated with a unique set of practical, social and
political challenges (Linnell 2015).
In addition, large carnivores tend to evoke highly polarized attitudes (Brox 2000). On
the one hand, they are tightly associated with conflicts that range from depredation on
livestock and pets, to competition with hunters for game, to social conflicts associated with
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wider issues that the carnivores symbolize (Linnell 2013; Redpath et al. 2013). On the
other hand, large carnivores are hugely popular with the general public. The strong feelings
many people have with respect to these species tend to translate into societal and political
pressures often favouring radically higher or lower population levels (Darpo
¨2011;
Borgstro
¨m2012;Lo
´pez-Bao et al. 2015).
The 2008 Carnivore Guidelines
These transboundary and conflict-prone characteristics led the European Commission to
fund the development of specific guidance concerning the application of the Habitats
Directive to large carnivores. This guidance was prepared by members of the Large
Carnivore Initiative for Europe (LCIE), a Specialist Group of the IUCN Species Survival
Commission, employing a science and experience based approach, incorporating the
results of extensive stakeholder and EU member state consultations (workshops and
meetings were held in almost every member state hosting large carnivores, and even in
non-EU countries with shared populations), and input from the Habitats Committee.
The resulting Guidelines for Population Level Management Plans for Large Carnivores
(‘Carnivore Guidelines’) were published and endorsed by the European Commission in
2008 (Linnell et al. 2008; European Commission 2008). According to the European
Commission, the Carnivore Guidelines represent best practice for the management of large
carnivore populations, and constitute a reference point against which [the Commission]
will monitor the actions taken by the Member States in fulfilment of their obligations under
the Habitats Directive (European Commission 2008). In 2015, the Guidelines were
complemented by another technical document prepared by the LCIE for the European
Commission, outlining several specific key actions to be taken with respect to each distinct
European large carnivore population (Boitani et al. 2015).
An operational definition for FCS for large carnivores
Uniquely, the 2008 Carnivore Guidelines provide a concrete operationalization of the FCS
concept for the four large carnivore species. As stated in the document itself, its devel-
opment required making a link between the philosophical/political/legal concept of FCS,
the biological concepts of population viability, other existing forms of categorising species
status (e.g. IUCN red lists), and the specific distribution patterns and biology of the large
carnivores (Linnell et al. 2008). The resulting approach is tailored to the level of each of
the separate large carnivore populations, most of which, as stated above, are trans-
boundary. Two of the key aspects of these guidelines are (1) the linking of FCS to the
threat categories of the IUCN red lists, and (2) the attachment of the scale of assessment
and management to the geography of biological populations irrespective of their alignment
with either jurisdictional or biogeographical boundaries.
Of particular interest is the operational definition provided in the Carnivore Guidelines
for FCS for large carnivores. The definition encompasses eight criteria, all of which must
be met for a particular large carnivore population to be deemed to have reached a FCS.
These criteria incorporate, and provide concrete interpretations of, the various elements of
the FCS definition in Article 1(i) of the Habitats Directive. Given the central significance
of this definition for the present article, the eight cumulative criteria are reproduced in full
in Box 1.
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The appropriate scale(s) to achieve FCS for large carnivores
The million euro question: FCS at what geographic scale?
Member states’ conceptions as to what, generally speaking, constitutes a favourable ref-
erence population (FRP) for determining FCS vary considerably. These include a threshold
of 5000 individuals in a functionally connected population (Flanders, Belgium); 500
reproductive units (the Netherlands); 500 functionally connected mature individuals at the
biogeographical region level (Denmark); and a range of much fuzzier approaches,
employed by most member states (McConville and Tucker 2015).The key question raised
here is the scale at which FCS is to be measured and achieved: at the level of a biogeo-
graphical region, a member state’s territory, a population, a Natura 2000 site, or a com-
bination of these? Interestingly, the answer to this question appears to vary not only
according to the species, but also, it would seem, according to the particular context—
reporting, site protection, or generic species protection (Trouwborst 2010).
FCS in the context of reporting
As regards reporting, member states periodically submit reports on the conservation status
of species and habitat types under Article 17 of the Habitats Directive. This is done per
biogeographical region, at the national level (European Commission 2007; Evans and
Box 1 Operational definition of FCS for large carnivore populations as provided in the Carnivore
Guidelines (Linnell et al. 2008)
(1) Population dynamics data on the species concerned indicate that it is maintaining itself on a long
term basis as a viable component of its natural habitat [Article 1 (i)]. We interpret this as implying that
monitoring data indicate the population has a stable or increasing trend. We believe that a slight
reduction in population size may be permitted if it is a result of response to changes in prey density or
habitat quality that are not caused by direct human action, unless conditions for derogations apply. All
segments of a population should have stable or positive trends, and not just the population as a whole.
And,
(2) The natural range of the species is neither being reduced nor is likely to be reduced for the
foreseeable future [Article 1 (i)]. We interpret this as implying that the overall distribution of the
population is stable or increasing. And,
(3) There is, and will probably continue to be, a sufficiently large habitat to maintain its population on a
long-term basis [Article 1 (i)]. We interpret this to imply that the quality and continuity of habitat
should be sufficient, and have a stable or increasing trend. And,
(4) The population size and range are equal to or greater than when the Directive came into force. And,
(5) The favourable reference population size has been reached. According to our proposal this will be set
at levels greater than those regarded as being viable using the IUCN red list criteria D or E. And,
(6) The favourable reference range has been occupied. And,
(7) Connectivity within and between populations (at least one genetically effective migrant per
generation) is being maintained or enhanced. And,
(8) Member States shall undertake surveillance of the conservation status of the natural habitats and
species referred to in Article 2 with particular regard to priority natural habitat types and priority
species [Article 11] and Member States shall establish a system to monitor the incidental capture and
killing of the animal species listed in Annex IV (a) [Article 12.4]. These statements combine to indicate
that the population should be subject to a robust monitoring program.
For a population to be regarded as having reached a FCS, all eight criteria must be satisfied.
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Arvela 2011). For species occurring in transboundary populations, however, the member
states concerned have the option of undertaking a joint assessment of current status at the
scale of the population, although each member state also has to report its results indi-
vidually (Evans and Arvela 2011). According to a guidance document on Article 17
reporting, such joint assessments should be carried out primarily in cases where there is a
certain level of cooperation and understanding of the management needs and approaches
for the species concerned, expressly mentioning large carnivore populations as an example
(Evans and Arvela 2011). However, to date no member states have availed themselves of
this joint assessment option.
FCS in the context of site protection
As regards habitat protection, the prevailing position seems to be that a FCS is to be
safeguarded primarily at the national level, although there are also some indications that
FCS might need to be attained even at the level of individual Natura 2000 sites (Trouw-
borst 2014b; Cliquet et al. 2015). The default position of the European Commission in this
regard is that:
The directives impose obligations on the Member States as such, which implies
that—inter alia—favourable conservation status of species and habitat types of
Community interest should be achieved at Member State level. This in turn implies
that where favourable conservation status is achieved at the national level, the
Member State does not necessarily have to achieve good conservation status in each
individual site. However, as a general rule in all Natura 2000 sites, Member States
must avoid the deterioration of the habitats of Community interest and the habitats of
species of Community interest for which a site was designated. (European Com-
mission 2011)
Interestingly, the CJEU determined in 2013 that in order for the integrity of a site as a
natural habitat not to be adversely affected for the purposes of the second sentence of
Article 6(3) of the Habitats Directive the site needs to be preserved at a favourable
conservation status (CJEU 11 April 2013, Case C-258/11). The Court reaffirmed this
position a year later (CJEU 15 May 2014, Case C-521/12). These cases, however,
concerned localized occurrences of particular habitat types (limestone pavement and
molinia meadows, respectively). When presented with a case concerning a site designated
for wolves, bears or other large carnivores, the Court can certainly not be expected to
interpret the Directive as requiring a FCS for such wide ranging species at the level of the
site. Such an interpretation, to cite the Vienna Convention, would be unreasonable or even
manifestly absurd, given that no single protected area in Europe is large enough to
independently host a viable large carnivore population, and most can hardly contain the
ranges of individuals (Linnell et al. 2001,2008; Boitani and Ciucci 2009).
FCS in the context of species protection
As regards generic species protection, the central provision for our present purposes is the
aforementioned Article 16, according to which a derogation from strict protection may be
granted only if it is not detrimental to the maintenance or achievement of the species’
populations at a FCS. Here, the chief question is whether conservation status ought to be
assessed at the (sub)national level or the transboundary population level—or both
(Trouwborst 2014b; Epstein et al. 2016; Epstein 2016). The scarce case law of the CJEU
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on this count may prima facie be taken to support the former, (sub)national approach. In a
case concerning the conservation and management of wolves in Finland, both parties to the
dispute (the European Commission and Finland) assessed the conservation status of wolves
at the national level within Finland, without regard to the Russian part of the contiguous
Karelian wolf population, and the Court likewise determined that at the time of the dispute
the conservation status of the wolf in Finland was not favourable (CJEU 14 June 2007,
Case C-342/05). To switch our focus briefly from large carnivores to a small herbivore, the
Court took a similar approach in the aforementioned French hamster case of 2011 (Case
C-383/09), addressing the hamster’s conservation status within France without considering
the contiguous population across the border in Germany and further eastward (Cle
´ment
2015).
Notably, the Finnish wolf case was decided by the CJEU prior to the publication of the
Carnivore Guidelines in 2008. Since then, the leading paradigm with regard to wolves and
other large carnivores has become the transboundary population level approach (Linnell
and Boitani 2012). Already in a 2007 guidance document on strict protection, the European
Commission had expressly advocated the view that, in connection with Article 16 dero-
gations, the killing of individuals of a wide-ranging large carnivore will need to be
evaluated at population level (transboundary where applicable) (European Commission
2007). The implicit consequence of this approach is expressly stated in the Carnivore
Guidelines themselves, namely that adopting the transboundary population as a benchmark
for FCS could exempt certain member states from the obligation to achieve a FCS for large
carnivores at the national level (Linnell et al. 2008).
The downside of adopting the transboundary population as a FCS benchmark
The question can be more clearly framed: for the large carnivore species occurring within
its borders, must a member state achieve FCS at the national level, or can it meet the legal
requirements of the Directive by making a meaningful national contribution to the
achievement of FCS for the shared transboundary population(s) to which the large car-
nivores on its own territory belong?
The legal snag with the latter alternative is that the Habitats Directive’s collective goal
of European biodiversity conservation is ultimately translated into individual obligations of
member states. Even where these obligations are carried out by several member states in a
coordinated fashion, for instance regarding a shared lynx population, in legal terms each
member state remains individually accountable for its own performance. In this regard the
Habitats Directive is representative of the state of international wildlife law more generally
where, despite some interesting exceptions, the realization of the notion of shared rather
than individual state responsibility for achieving conservation objectives is still in an early
stage (Trouwborst 2016a). This has a lot to do with the obvious need to keep states from
hiding behind the performance of others, for instance by using an abundance or positive
trend of a species abroad as an incentive to tone down its own ambitions and efforts to
conserve the species within its own territory (Shine 2005). For precisely that reason the
CJEU generally does not grant member states much room for relying on conservation
efforts across their borders, focusing instead on their own performance under the Directive
(CJEU 13 December 2007, Case C-418/04).
This need to ensure national accountability may also explain why the European
Commission, acting in its capacity as EU law enforcer in the Swedish wolf infringement
procedure, has not emphasized a transboundary population level approach to FCS for the
wolf. For example, in one of its letters the Commission notes that Sweden and the
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Commission agree that the Swedish population is not in favourable conservation status,
while failing to refer to the transboundary Scandinavian population, which also includes
animals in Norway (European Commission 2010). As discussed below, however, this
approach may not be as inconsistent as it may appear at first sight.
The downside of adopting the national population as a FCS benchmark
Having thus identified a potential snag affecting the use of the transboundary population as
FCS benchmark, we now draw attention to the fact that a (sub)national approach to FCS for
large carnivores is affected by problems of its own. Notably, the aforementioned indica-
tions that could be taken to suggest that a national benchmark must be used for FCS of
large carnivores—the Finnish wolf case and the Commission’s position in the Swedish
infringement procedure—both concern large countries where size and habitat availability
make it conceivable that they could independently harbour large carnivore populations
meeting the requirements for FCS within their own borders. However, when considering
the scenario of lynx or wolves in the Benelux countries it is almost impossible to imagine
these countries having enough habitat or space to contain enough individuals to attain FCS
in isolation (or not at least if ‘favourable’ is indeed in any way attached to absolute
standards associated with population viability) (Linnell et al. 2001,2008; Linnell and
Boitani 2012). An associated issue even concerns Swedish wolves. These are highly
inbred, such that their long term viability depends on immigration from Finland far more
than it does on the size of the population within Sweden (Laikre et al. 2013; Liberg et al.
2015).
The Carnivore Guidelines unequivocally recognize this complicated state of affairs
when stating that many (maybe most) countries will never be able to host enough indi-
viduals to have a population that can reach FCS (Linnell et al. 2008). In the words of the
European Commission, it is difficult, if not impossible, for one Member State to manage
and protect its large carnivores in the absence of concerted and convergent actions being
taken by its neighbours (European Commission 2008). Likewise, the CJEU may be
expected to avoid interpretations of the Habitats Directive which cause a direct and
obvious clash between the law and ecological reality (Trouwborst 2011; Linnell and
Boitani 2012; Trouwborst 2014d). What is more, the Court can be trusted to avoid
interpretations which require member states to do the impossible. Indeed, demanding the
impossible is the very opposite of legal interpretation in good faith, and nothing could be
more manifestly absurd or unreasonable (Vienna Convention; see ‘The rules of the
interpretation game’ section above). In sum, it is fanciful to imagine an interpretation of
the Habitats Directive by the CJEU that strictly requires the achievement of a FCS for large
carnivores at the national level in all member states where these species occur.
A related, although opposite, problem of scale exists for some other countries that have
highly fragmented populations of a carnivore species with large distances of non-passable
habitat between them. An example would be Italy’s bears, where two small populations
occur. One is in the central Apennines, centered around Abruzzo National Park, with a
second in the Alps, over 500 km away. It is almost inconceivable that these populations
will reconnect in the near future, due to virtually irreversible changes in and fragmentation
of the relevant habitat. The Alpine population makes no practical contribution to the
conservation status of the Abruzzo population, meaning that it makes no sense to assess the
conservation status of bears in Italy as a whole, and any attempt to do so would grossly
overestimate their viability.
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Population level management plans as the silver bullet
Thus, the most appropriate interpretation of the issue of scale regarding FCS for large
carnivores has to be the result of navigating carefully between the various snags just
identified. This points to the need to come up with a solid and workable conservation
approach that combines biological realism with a way to achieve the legal aims of the
Directive and enabling verifiable compliance by member states with their obligations
concerning large carnivores. This need is precisely the reason why the Carnivore Guide-
lines were developed (Linnell et al. 2008; Linnell and Boitani 2012).
The Carnivore Guidelines adopt the (transboundary) population as the most appropriate
scale on which to focus conservation status assessments (Linnell et al. 2008). However,
they make this conditional on the adoption and implementation of a joint management plan
or equivalent formalized cooperative structure, between the competent authorities of all
countries involved, for each large carnivore population. This way, all countries sharing the
population should contribute to ensuring between them that the population reaches and
maintains FCS (Linnell et al. 2008). The Guidelines provide a detailed template regarding
the substance of such cooperation agreements. According to the European Commission,
effective management of large carnivore populations which are shared between Member
States can only be achieved through shared and coordinated management plans as
described in the[se] guidelines (European Commission 2008). Of course, not all large
carnivore populations are transboundary. To return to the Italian bear example given above
(‘The downside of adopting the national population as a FCS benchmark’ section), under
the Carnivore Guidelines, Italy would have sole responsibility for ensuring a FCS of the
isolated Apennine population, in addition to making a contribution together with Austria
and Slovenia to ensure a FCS for the Alpine population.
The Standing Committee of the Bern Convention, the Convention’s main decision-
making body in which all parties are represented, has similarly called on the contracting
parties to the Convention to reinforce cooperation with neighbouring states in view of
adopting harmonized policies towards management of shared populations of large car-
nivores, taking into account the best practice in the field of management of populations of
large carnivores, with express reference to the EU Carnivore Guidelines (Recommenda-
tion No. 137 (2008)). Incidentally, the Guidelines’ template may serve as a blueprint for
international cooperation at the transboundary population level for other species and
regions as well (Selier et al. 2016).
According to the Carnivore Guidelines, each transboundary management plan is
expected to clarify what will be understood as a FRP and a ‘favourable reference range’
(FRR) for the population concerned, and to set out the actions to be taken by each
participating country to achieve or maintain those values (Linnell et al. 2008). Regarding
removals of large carnivores from the population, including derogations from strict pro-
tection, the transboundary management plan should set a population level limit for the
number of individuals that can be removed per year, while ensuring that any actual
removal of large carnivores is coordinated between all countries sharing the population,
and that the evaluation of the ‘no detrimental effect on FCS’-test for Article 16 derogations
is conducted at the population level (Linnell et al. 2008). This would give each individual
member state more flexibility to allow derogations from strict protection where deemed
desirable, than would have been the case under the application of a national approach to
determining FCS (Trouwborst 2014b). Indeed, this can be seen as an important ‘carrot’ to
coax member states into developing joint population level management.
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Conversely, however, until a fully-fledged and well-functioning transboundary plan is in
place and provides for the enumerated safeguards, the national level would be the default
scale for assessing FCS for large carnivore populations and for assessing the compliance of
the member states involved with their obligations under the Habitats Directive—resulting
in significantly more onerous and potentially infeasible requirements for those member
states. Viewed in this light, employing a national yardstick in the Swedish infringement
proceedings would seem appropriate after all, given that the current degree of cooperation
between Sweden and Norway regarding wolves does not meet the standards set out in the
Carnivore Guidelines and that the potential connection to Finland is too distant and
infrequent to contribute to demographic viability (Trouwborst 2010; Blanco 2013;
Trouwborst 2014b).
We are comfortable, then, in recommending the approach laid out in the Carnivore
Guidelines as the appropriate way forward for applying the FCS concept to large carni-
vores in Europe. Not only is this a realistic and science-based approach reflecting extensive
stakeholder involvement, but it also appears to represent the only way to avoid the two
serious problems of legal interpretation outlined above—and appears therefore the most
‘CJEU-proof’ of all available alternatives.
Demographic, genetic and ecological factors
Demographic and genetic factors in the FCS assessment
The Carnivore Guidelines (Linnell et al. 2008) aimed to provide clear quantitative guid-
ance about the number of individuals that were needed to achieve FCS, in an effort to give
EU member states a consistent basis for the implementation of the Habitats Directive
regarding large carnivores. This was done by linking the concept of FCS to the globally
recognized threat assessment criteria adopted by the IUCN in its red list assessments. The
rationale was that a population must be considered to be at FCS if it was, inter alia, outside
the categories regarded as being at threat under IUCN criteria. These criteria remain the
leading (only) internationally established set of criteria for this form of assessment. They
are based on the discipline of population viability analysis (IUCN Standards and Petitions
Subcommittee 2016). Functionally, they base an assessment of extinction probability on
the demographics of a population and typically do not expressly take into account genetic
issues unless they have a direct impact on demographic parameters (birth and death rates)
(IUCN Standards and Petitions Subcommittee 2016).
This use of the IUCN criteria to inform FCS assessments has provoked criticism from
various authors (Laikre et al. 2009; Epstein et al. 2016) who claim that the concept of FCS
cannot be satisfied by such a ‘low’ level of conservation ambition, and that FCS presup-
poses genetic viability in addition to demographic viability. Laikre et al. (2009) claim in
this regard that the Carnivore Guidelines completely disregard the effective population size
required for long-term viability. Likewise, Epstein et al. (2016) argue that the Carnivore
Guidelines focus too narrowly on demographic viability, submitting that the guidelines’
recommendation to use criterion E is wholly unjustified and should be rejected. Both
criticisms are unfortunate misrepresentations of the Carnivore Guidelines.
To be sure, the Habitats Directive makes no direct link to population viability or IUCN
criteria as a basis for determining FCS. The relevant guidance lies in the definition of FCS
in Article 1(i) which requires that population dynamics data on the species concerned
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indicate that it is maintaining itself on a long-term basis as a viable component of its
natural habitats. The reference to population dynamics data appears to align with the
rationale of the IUCN criteria, which are based largely on demographic parameters. And
the Article 17 reporting guidelines (Evans and Arvela 2011) state that population viability
analysis can be used to assess FRP if it is available. The critics, however, point to the
language dealing with conservation for the long-term and a species as a viable component
of its natural habitats. IUCN criteria typically assess viability over 100 year time horizons.
Certainly, if the term long-term is interpreted as referring to periods longer than this,
viability will depend on levels of genetic variation being maintained. This dimension of
genetic variation is also specifically mentioned in the Article 17 reporting guidelines
(Evans and Arvela 2011), although its consideration is carefully presented as an option
rather than a rule of thumb. The reporting guidelines state that it may be relevant to
consider the genetic structure of a species, while highlighting that [i]n many cases little
information is available (Evans and Arvela 2011).
In any event and contrary to what Laikre et al. (2009) and Epstein et al. (2016) have
suggested, the issue of genetic viability is not ignored in the 2008 Carnivore Guidelines.
The Guidelines acknowledge that minimum viable populations (MVPs), which are mainly
based on demographic considerations are unlikely to be sufficient to achieve the levels of
genetic viability or ecological viability that we assume are implied in the intentions of the
Habitats Directive (Linnell et al. 2008). Thus, the Carnivore Guidelines recognize that the
purpose of the Habitats Directive, as Epstein (2016) recently phrased it, is to promote
flourishing rather than merely to prevent extinction. Accordingly, the Guidelines recom-
mend that to achieve the level of a FRP a large carnivore population must, among other
things, be at least as large (and preferably much larger) than an MVP, as defined by the
IUCN criterion E (extinction risk based on a quantitative PVA with \10 % extinction risk
in 100 years), or criterion D (number of mature individuals) (Linnell et al. 2008). Besides,
as Epstein (2016) also notes, the application of IUCN Criterion E may already require that
genetic factors are taken into account (IUCN Standards and Petitions Subcommittee 2016).
Furthermore, in the context of the favourable reference range (FRR) the Carnivore
Guidelines have specifically translated the need for genetic viability into a requirement to
ensure connectivity between populations, which is essential for gene flow. This incorpo-
rates the same rule of thumb as is emphasized by Laikre et al. (2009), namely ensuring at
least one genetically effective migrant per generation (Linnell et al. 2008). Thus, rather
than ignoring its importance, the Carnivore Guidelines have elevated the notion of genetic
viability to a level that embraces multiple populations, in effect requiring connectivity
across much of the European continent (Linnell et al. 2008). In any event, it would be even
less practical for most European countries to contain enough individuals of these low
density and wide ranging species to autonomously achieve populations that are genetically
viable than it is to obtain demographic viability (see ‘The downside of adopting the
national population as a FCS benchmark’ section above), something which Laikre et al.
(2009), Epstein et al. (2016) and Epstein (2016) acknowledge.
Thus, encouragingly, the conclusion seems warranted that the critical opinions voiced
by these authors concerning the approach set forth in the Carnivore Guidelines regarding
FCS for large carnivores may be ascribed to misunderstanding rather than disagreement.
Ecological factors in the FCS assessment
Another aspect of the statement that a species should be a viable component of its natural
habitats is far less clear. On one level, this statement could appear to imply simply that the
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species should be present in its habitat at a level which is viable. However, we agree with
Epstein et al. (2016) that it could also be interpreted to mean that the Habitats Directive
aims to ensure the preservation of ecological processes as well as species. Large carnivores
are certainly associated with a wide range of ecological processes through their roles as
predators, with direct and indirect effects on prey, and thereby potential cascading impacts
on habitats. The impacts that predators have on their prey are, however, highly variable and
context dependent. This is especially true in human-dominated landscapes, as in Europe,
where humans have by far the strongest impact at all trophic levels. Humans modify
vegetation structure through forestry and agriculture, they influence prey through hunting,
supplementary feeding and providing livestock, and they influence large carnivores
directly through accidental and deliberate mortality, and indirectly through habitat frag-
mentation (Andersen et al. 2006; Boitani and Linnell 2015; Dorresteijn et al. 2015).
The implication is that any role large carnivores will have in the ecology of European
habitats is going to be heavily modified by humans, removing any possible benchmark of
‘naturalness’, and thus making it very hard to assess what level of interaction is regarded as
being sufficient. Our best interpretation is that the criterion of a viable component of its
natural habitats is simply a call to keep numbers at a level higher than minimum levels, in
the same way that the various existing guidelines state that FRP should be larger than
MVPs.
Precaution and pragmatism
In the absence of serious conflicts of interest the benefit of the doubt regarding all these
interpretive issues could be given to the species, in accordance with the precautionary
principle, potentially leading to requirements for very large population sizes. However,
particularly in light of the effet utile doctrine, considerations of practical feasibility may
influence the Court’s stance on the operationalization of FCS in a given case. For instance,
it is not self-evident what the position of the CJEU would be when confronted with a
choice between a consistent and workable approach to FCS such as the one outlined in the
Carnivore Guidelines, and an approach which is theoretically more ambitious from a
conservation perspective but is so complex and controversial that it is difficult to apply in a
meaningful manner in practice, e.g., an approach emphasizing ecological functionality,
which is notoriously difficult to quantify.
An added consideration is that large carnivores are associated with many conflicts
(Linnell 2013) and that high population targets are therefore very controversial across
Europe. The fear among many conservationists is that pushing too hard for ambitious goals
will lead to a backlash in public opinion, weakening the species’ conservation in the long
term. We doubt, however, that this particular concern is likely to influence the position of
the CJEU in a given case involving the interpretation of FCS for large carnivores.
Extinction versus carrying capacity as benchmarks
Measuring FCS upward from extinction or downward from carrying capacity
Until recently there was an apparent consensus that FCS should be defined and opera-
tionalized at some level above the absolute lower threshold of extinction, following the
same logic as the IUCN red list criteria. The discussion was about how much above
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‘extinct’ it should be. In a recent paper, however, Epstein et al. (2016) have argued in
favour of a radically different approach whereby FCS would be defined as a deviation from
carrying capacity instead of extinction. This was motivated by a desire to place emphasis
on the ecological function of carnivores, an emphasis the authors consider to be implied by
the as a viable component of its natural habitats language of the Directive’s FCS defi-
nition. The idea has several attractive aspects, not the least being that it would scale a given
country’s required level of ambition in carnivore conservation to its available habitat. The
approach has already been operationalized, most notably in Poland with regard to wolves
(Je˛drzejewski et al. 2008). With reference to this Polish example, the Article 17 reporting
guidelines note—in a descriptive, not prescriptive manner—that some countries have used
the concept of carrying capacity together with estimates of the range or suitable habitat to
estimate a FRP (Evans and Arvela 2011).
Carrying capacity approach unworkable as general rule
On closer examination, however, using carrying capacity as benchmark would not make a
good general rule. It is not clear, for example, how carrying capacity for large carnivores
should be defined in human-dominated landscapes. Carrying capacity is very hard to define
anyway a priori and without some experimentation, and it is likely to shift over time. For
carnivores, it is likely to be influenced heavily by the densities of wild and domestic prey.
One question would be whether domestic prey should be included or not? In some parts of
Europe, carnivores largely subsist on domestic prey, which they obtain either through
predation or scavenging. Excluding such prey from the equation would thus effectively
lead to estimates of carrying capacity well below present carnivore densities. Similarly,
many populations of wild ungulates in Europe today are at record high densities because
they benefit directly from supplementary feeding and indirectly from improved foraging
opportunities as a result of agriculture and forestry. A further consideration is that most of
Europe’s bears (in the Dinaric and Carpathian mountains) are fed (Kavc
ˇic
ˇet al. 2015). To
what extent should these artificially enhanced prey/forage resources be included in car-
rying capacity? If they are excluded, then many carnivore populations are probably above
carrying capacity, especially bears in southeastern Europe. Indeed, if the emphasis is going
to be placed on the ‘natural habitats’ part of achieving FCS, a good argument could
actually be made that there is no need to include large carnivores in any of the manmade
habitats that constitute the vast majority of Europe’s surface. A final issue concerns the
selection of the proportion of carrying capacity to be used as a threshold. Epstein et al.
(2016) propose 50 %, but this is as subjective as the extinction risk criteria lying behind
IUCN red list criteria.
Legal uncertainty persists
While we thus do not think carrying capacity can serve as a general guideline for deter-
mining FCS for large carnivores, the debate about extinction versus carrying capacity as
benchmarks does underline the massive uncertainty as to what the architects of the Habitats
Directive had in mind when they said that species need to be viable components of their
natural habitats. From a legal perspective it is hard to predict with any certainty that the
CJEU would have a preference for either approach. While Epstein et al. (2016) claim that
using carrying capacity is more ‘logically consistent’ than using extinction as benchmark,
they—rightly—stop short of claiming that this would be the only correct legal
Biodivers Conserv (2017) 26:37–61 55
123
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interpretation. Subsequently, Epstein (2016) has said that the choice of approach in this
regard seems to be left to the discretion of the Member States.
Conclusions
Synopsis
Some findings of the preceding review can be summarily stated as follows:
First, despite the relevance of a range of scientific, cultural and socio-economic vari-
ables, the meaning of the FCS concept under the Habitats Directive is ultimately a legal
question with a legal answer and hinges, therefore, on a proper understanding of EU law
interpretation.
Second, given the nature of EU law, the closest we can hope to get to a correct
interpretation of FCS is to identify the interpretation most likely to be endorsed by the
CJEU. Other conclusive statements are not warranted at the present stage. The discourse
regarding FCS needs to distinguish clearly between the law as it stands and the law as it
should be in one’s own opinion.
Third, regarding the question of geographic scale, the superior interpretation, bearing in
mind the preceding caveat, is that the national level is the default for the achievement of
FCS for large carnivore species, including where the animals are part of transboundary
populations. However, once a fully-fledged population level management plan has been
developed by the countries involved and becomes operational, the transboundary popu-
lation is an appropriate FCS benchmark.
Fourth, regarding the question of demographic and genetic factors, the operational
definition of FCS provided in the Carnivore Guidelines, which incorporates demographic
as well as genetic factors, would appear to be both CJEU-proof and workable.
Fifth, regarding the question of using extinction versus carrying capacity as benchmark
for determining FCS, the latter seems to be practically unsuitable to serve as a general rule
in the European large carnivore context.
Carnivore Guidelines provide surest way forward through legal FCS
quagmire
How to interpret and operationalize the FCS concept for different species and in different
contexts remains one of the most vexing and persistent questions regarding the imple-
mentation of the Habitats Directive. Large carnivores pose particularly intricate challenges.
The Carnivore Guidelines offer a way out of the labyrinth of legal interpretation issues
governing the Directive’s implementation, and a constructive and pragmatic way forward
for the conservation and management of large carnivores in Europe. Given that the
Guidelines were developed by leading experts on European carnivores, and through an
extensive consultation process with stakeholders and the competent authorities in member
states, they have considerable weight as the state-of-the-art guidance, at least until the
CJEU confirms or rejects what they recommend. Furthermore, we have identified no
inconsistencies or legal incompatibilities between the Carnivore Guidelines and other
guidance developed by the European Commission, including the subsequently issued
Article 17 reporting guidelines (Evans and Arvela 2011). The actual development and
implementation of cooperative management structures at the transboundary population
56 Biodivers Conserv (2017) 26:37–61
123
Content courtesy of Springer Nature, terms of use apply. Rights reserved.
level is a slow process (Blanco 2013)—and understandably so, given the challenges
involved (Linnell and Boitani 2012). It does, however, seem to be the only way to go.
Questions of ‘how many do you need?’ and ‘how many do you want?’ should
not be mixed
Finally, FCS, however it is determined, represents a legally binding minimum standard
motivated primarily by European level conservation concerns. However, in any given part
of Europe, the actual population sizes (targets) for large carnivores deemed to be appro-
priate will be influenced not only by legal and ecological considerations but also by socio-
economic and cultural considerations. Hence the importance of distinguishing between the
question of how many carnivores are needed to satisfy obligations under the Habitats
Directive and the question of how many carnivores are wanted to satisfy national level
ambitions. The former constitutes a legally binding minimum, and must be set in accor-
dance with the demands of the European legal framework. The latter is subject to national
deliberative processes, which vary considerably across the EU and over time, and is,
therefore, a much more open-ended question. Attempting to find European support for
national level decisions while failing to distinguish between the two questions, has pro-
duced unnecessary confusion and conflict (Hiedanpa
¨a
¨and Bromley 2011). In a European
context where nationalism is resurging, a more sustainable and constructive strategy can
only be achieved if the distinction is observed.
Acknowledgments JDCL was funded by the Research Council of Norway (Project 212919) and the
Norwegian Environment Agency. AT was funded by the Netherlands Organization for Scientific Research,
as part of the project ‘Ius Carnivoris’ (Project 452-13-014, www.tilburguniversity.edu/iuscarnivoris). Very
helpful comments by the anonymous reviewers and by Floor Fleurke and Han Somsen are gratefully
acknowledged. The authors are grateful to all their colleagues in the Large Carnivore Initiative for Europe
for fruitful discussions over many years.
Compliance with ethical standards
Conflict of interest The authors declare that they have no conflict of interest.
Open Access This article is distributed under the terms of the Creative Commons Attribution 4.0 Inter-
national License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution,
and reproduction in any medium, provided you give appropriate credit to the original author(s) and the
source, provide a link to the Creative Commons license, and indicate if changes were made.
References
Andersen R, Linnell JDC, Solberg EJ (2006) The future role of large carnivores on terrestrial trophic
interactions: the northern temperate view. In: Danell K, Bergstro
¨m R, Duncan P, Pastor J (eds) Large
herbivore ecology, ecosystem dynamics and conservation. Cambridge University Press, Cambridge,
pp 413–448
Bastmeijer CJ, Trouwborst A (2015) Zijn de Vogelrichtlijn en Habitatrichtlijn fit? Een bespreking van de
krachtige kenmerken en kritiekpunten van de EU Vogelrichtlijn en Habitatrichtlijn tegen de achter-
grond van de EU fitness check [Are the Birds Directive and Habitats Directive fit? A discussion of
characteristics and criticisms of the EU Birds and Habitats Directives against the background of the EU
fitness check] (in Dutch). A Tilburg Law School report prepared for WWF-Netherlands
Blanco JC (2013) Towards a population level approach for the management of large carnivores in Europe:
challenges and opportunities. Eur Comm, Brussels
Boitani L, Ciucci P (2009) Wolf management across Europe: species conservation without boundaries. In:
Musiani M, Boitani L, Paquet PC (eds) A new era for wolves and people: wolf recovery, human
attitudes, and policy. University of Calgary Press, Calgary, pp 15–40
Biodivers Conserv (2017) 26:37–61 57
123
Content courtesy of Springer Nature, terms of use apply. Rights reserved.
Boitani L, Linnell JDC (2015a) Bringing large mammals back: large carnivores in Europe. In: Pereira HM,
Navarro LM (eds) Rewilding European landscapes. Springer, Cham, pp 67–84
Boitani L, Sutherland WJ (2015b) Introduction special section: conservation in Europe as a model for
emerging conservation issues globally. Conserv Biol 29:975–977
Boitani L, Alvarez F, Anders O, Andren H, Avanzinelli E, Balys V, Blanco JC, Breitenmoser U, Chapron G,
Ciucci P, Dutsov A, Groff C, Huber D, Ionescu O, Knauer F, Kojola I, Kubala J, Kutal M, Linnell J,
Majic A, Mannil P, Manz R, Marucco F, Melovski D, Molinari A, Norberg H, Nowak S, Ozolins J,
Palazon S, Potocnik H, Quenette P, Reinhardt I, Rigg R, Selva N, Sergiel A, Shkvyria M, Swenson J,
Trajce A, Von Arx M, Wolfl M, Wotschikowsky U, Zlatanova D (2015) Key actions for large
carnivore populations in Europe. A Large Carnivore Initiative for Europe report prepared for the
European Commission (contract 070307/2013/654446/SER/B3)
Borgstro
¨m S (2012) Legitimacy issues in Finnish wolf conservation. J Environ Law 24:451–476
Born C, Cliquet A, Schoukens H, Misonne D, Van Hoorick G (eds) (2015) The Habitats Directive in its EU
environmental law context: European nature’s best hope?. Routledge, London
Bowman M, Redgwell C, Davies P (2010) Lyster’s International Wildlife Law, 2nd edn. Cambridge
University Press, Cambridge
Brown LN, Kennedy T (2000) The Court of Justice of the European Communities, 5th edn. Sweet &
Maxwell, London
Brox O (2000) Schismogenesis in the wilderness: the reintroduction of predators in Norwegian forests.
Ethnos 65:387–404
Carter NH, Linnell JDC (2016) Co-adaptation is key to coexisting with large carnivores. Trends Ecol Evol
31:575–578
Chapron G (2014) Challenge the abuse of science in setting policy. Nature 516:289
Chapron G, Kaczensky P, Linnell JDC, von Arx M, Huber D, Andre
´nH,Lo
´pez-Bao JV, Adamec M,
A
´lvares F, Anders O, Balc
ˇiauskas L, Balys V, Bed}
o P, Bego F, Blanco JC, Breitenmoser U, Brøseth H,
Bufka L, Bunikyte R, Ciucci P, Dutsov A, Engleder T, Fuxja
¨ger C, Groff C, Holmala K, Hoxha B,
Iliopoulos Y, Ionescu O, Jeremic
´J, Jerina K, Kluth G, Knauer F, Kojola I, Kos I, Krofel M, Kubala J,
Kunovac S, Kusak J, Kutal M, Liberg O, Majic
´A, Ma
¨nnil P, Manz R, Marboutin E, Marucco F,
Melovski D, Mersini K, Mertzanis Y, Mysłajek RW, Nowak S, Odden J, Ozolins J, Palomero G,
Paunovic
´M, Persson J, Potoc
ˇnik H, Quenette P-Y, Rauer G, Reinhardt I, Rigg R, Ryser A, Salvatori V,
Skrbins
ˇek T, Stojanov A, Swenson JE, Szemethy L, Trajc¸e A, Tsingarska-Sedefcheva E, Va
´n
ˇaM,
Veeroja R, Wabakken P, Wo
¨lfl M, Wo
¨lfl S, Zimmermann F, Zlatanova D, Boitani L (2014) Recovery
of large carnivores in Europe’s modern human-dominated landscapes. Science 346:1517–1519
Cle
´ment M (2015) Global objectives and scope of the Habitats Directive: What does the obligation of result
mean in practice? The European hamster in Alsace. In: Born C, Cliquet A, Schoukens H, Misonne D,
Van Hoorick G (eds) The Habitats Directive in its EU environmental law context: European nature’s
best hope?. Routledge, London, pp 9–20
Cliquet A, Decleer K, Schoukens H (2015) Restoring nature in the EU: the only way is up? In: Born C,
Cliquet A, Schoukens H, Misonne D, Van Hoorick G (eds) The Habitats Directive in its EU envi-
ronmental law context: European nature’s best hope?. Routledge, London, pp 265–284
Commission European (2007) Guidance document on the strict protection of animal species of Community
interest under the Habitats Directive 92/43/EEC. Eur Comm, Brussels
Darpo
¨J (2011) Brussels advocates Swedish grey wolves: on the encounter between species protection
according to Union law and the Swedish wolf policy. SIEPS European Policy Analysis 2011(8):1–19
Darpo
¨J, Epstein Y (2015a) Under fire from all directions: Swedish wolf management hunting scrutinized by
Brussels and at home. In: Born C, Cliquet A, Schoukens H, Misonne D, Van Hoorick G (eds) The
Habitats Directive in its EU environmental law context: European nature’s best hope?. Routledge,
London, pp 348–372
Darpo
¨J, Epstein Y (2015b) Thrown to the wolves —Sweden once again flouts EU standards on species
protection and access to justice. Nord Environ Law J 7:7–20
Deinet S, Ieronymidou C, McRae L, Burfield IJ, Foppen RP, Collen B, Bo
¨hm M (2013) Wildlife comeback
in Europe: the recovery of selected mammal and bird species. Zoological Society of London Birdlife
International and European Bird Census Council, London
Delaney D (2003) Law and nature. Cambridge University Press, Cambridge
Donald PF, Sanderson FJ, Burfield IJ, Bierman SM, Gregory RD, Waliczky Z (2007) International con-
servation policy delivers benefits for birds in Europe. Science 317:810–813
Dorresteijn I, Schultner J, Nimmo DG, Fischer J, Hanspach J, Kuemmerle T, Kehoe L, Ritchie EG (2015)
Incorporating anthropogenic effects into trophic ecology: predator-prey interactions in a human-
dominated landscape. Proc R Soc B 282:20151602
58 Biodivers Conserv (2017) 26:37–61
123
Content courtesy of Springer Nature, terms of use apply. Rights reserved.
Epstein Y (2013) Population based species management across legal boundaries: the Bern Convention,
Habitats Directive, and the gray wolf in Scandinavia. Geo Int Environ Law Rev 25:549–597
Epstein Y (2016) Favourable conservation status for species: examining the Habitats directive’s key concept
through a case study of the swedish Wolf. J Environ Law 28:221–224
Epstein Y, Darpo
¨J (2013) The wild has no words: environmental NGOs empowered to speak for protected
species as Swedish courts apply EU and international environmental law. J Eur Environ Plan Law
10:250–261
Epstein Y, Lo
´pez-Bao JV, Chapron G (2016) A legal-ecological understanding of favorable conservation
status for species in Europe. Conserv Lett 9:81–88
European Commission (2008) Note to the Guidelines for Population Level Management Plans for Large
Carnivores. Eur Comm, Brussels
European Commission (2010) Letter from Commissioner Potoc
ˇnik to the Swedish Environment Minister
Carlgren, Ref. Ares (2010) 919017, 7 December 2010
European Commission (2011) Answer given by Mr Potoc
ˇnik on behalf of the Commission to parliamentary
question E-008540/2011, 9 November 2011
European Environment Agency (2015) State of nature in the EU: results from reporting under the Nature
Directives 2007–2012. Publications Office of the European Union, Luxembourg
Evans D, Arvela M (2011) Assessment and reporting under Article 17 of the Habitats Directive: Explanatory
notes & guidelines for the period 2007-2012. Eur Comm, Brussels
Fleurke FM, Trouwborst A (2014) European regional approaches to the transboundary conservation of
biodiversity: the Bern Convention and the EU Birds and Habitats Directives. In: Kotze L, Marauhn T
(eds) Transboundary governance of biodiversity. Martinus Nijhoff Publishers, Leiden/Boston,
pp 128–162
Freyfogle ET (2006) Conservation biology and law: only a start. Conserv Biol 20:679–680
Hiedanpa
¨a
¨J, Bromley DW (2011) The harmonization game: reasons and rules in European biodiversity
policy. Environ Policy Gov 21:99–111
IUCN Standards and Petitions Subcommittee (2016) Guidelines for using the IUCN Red List categories and
criteria. Version 12. http://www.iucnredlist.org/documents/RedListGuidelines.pdf accessed 13 May
2016
Je˛drzejewski W, Je˛drzejewski B, Zawadzka B, Borowik T, Nowak S, Mysłajek RW (2008) Habitat suit-
ability model for Polish wolves based on long-term national census. Anim Conserv 11:377–390
Jones G (ed) (2012) The Habitats Directive: a developer’s obstacle course?. Hart Publishing, Oxford
Jorgensen K, Clemetsen M, Thoren Halvorsen, Richardson T (eds) (2016) Mainstreaming landscape through
the European Landscape Convention. Routledge, London
Kaczensky P, Chapron G, Von Arx M, Huber D, Andre
´n H, Linnell J (eds) (2013) Status, management and
distribution of large carnivores—bear, lynx, wolf and wolverine—in Europe. European Commission,
Brussels
Kavc
ˇic
ˇI, Adamic
ˇM, Kaczensky P, Krofel M, Kobal M, Jerina K (2015) Fast food bears: brown bear diet in
a human-dominated landscape with intensive supplemental feeding. Wildl Biol 21:1–8
Laffan B, O’Mahoney J (2004) Mis-fit, politicisation and Europeanisation: the implementation of the
Habitats Directive in Ireland. OEUE Occasional Paper OEUE, Dublin
Laikre L, Nilsson T, Primmer CR, Ryman N, Allendorf FW (2009) Importance of genetics in the inter-
pretation of favourable conservation status. Conserv Biol 23:1378–1381
Laikre L, Jansson M, Allendorf FW, Jakobsson S, Ryman N (2013) Hunting effects on favourable con-
servation status in highly inbred Swedish wolves. Conserv Biol 27:248–253
Liberg O, Chapron G, Wikenros C, Flagstad Ø, Wabakken P, Sand H (2015) An updated synthesis on
appropriate science-based criteria for ‘‘favourable reference population’’ of the Scandinavian wolf
(Canis lupus) population. Assignment from the Swedish Environmental Protection Agency (SEPA)
Case number NV-03602-15
Linnell JDC (2013) From conflict to coexistence: insights from multi-disciplinary research into the rela-
tionships between people, large carnivores and institutions. Istituto di Ecologia Applicata, Rome
Linnell JDC (2015) Defining scales for managing biodiversity and natural resources in the face of conflicts.
In: Redpath SM, Gutie
´rrez RJ, Wood KA, Young JC (eds) Conflicts in conservation: navigating
towards solutions. Cambridge University Press, Cambridge, pp 208–218
Linnell JDC, Boitani L (2012) Building biological realism into wolf management policy: the development of
the population approach in Europe. Hystrix, Ital J Mammal 23:80–91
Linnell JDC, Andersen R, Kvam T, Andre
´n H, Liberg O, Odden J, Moa P (2001) Home range size and
choice of management strategy for lynx in Scandinavia. Environ Manage 27:869–879
Biodivers Conserv (2017) 26:37–61 59
123
Content courtesy of Springer Nature, terms of use apply. Rights reserved.
Linnell JDC, Salvatori V, Boitani L (2008) Guidelines for population level management plans for large
carnivores in Europe. A Large Carnivore Initiative for Europe report prepared for the European
Commission (contract 070501/2005/424162/MAR/B2)
Linnell JDC, Kaczensky P, Wotschikowsky U, Lescureux N, Boitani L (2015) Framing the relationship
between people and nature in the context of European conservation. Conserv Biol 29:978–985
Linnell JDC, Trouwborst A, Boitani L, Kaczensky P, Reljic S, Huber D, Kusak J, Majic A, Skrbinsek T,
Potocnik H, Hayward MW, Milner-Gulland EJ, Buuveibaatar B, Olson KA, Badamjav L, Bischof R,
Zuther S, Breitenmoser U (2016) Border security fencing and wildlife: the end of the transboundary
paradigm in Eurasia? PLoS Biol 14:e1002483
Lo
´pez-Bao JV, Blanco JC, Rodrı
´guez A, Godinho R, Sazatornil V, Alvares F, Garcı
´a EJ, Llaneza L, Rico M,
Corte
´s Y, Palacios V, Chapron G (2015) Toothless wildlife protection laws. Biodivers Conserv
24:2105–2108
McConville AJ, Tucker GM (2015) Review of favourable conservation status and Birds Directive Article 2
interpretation within the European Union. An Institute for European Environmental Policy report
prepared for Natural England (No. 176)
Mehta
¨la
¨J, Vuorisalo T (2007) Conservation policy and the EU Habitats Directive: favourable conservation
status as a measure of conservation success. Eur Environ 17:363–375
Michanek G (2012) Strictly protected European wolf meets Swedish hunter with licence to kill. In: Backer
IL et al (eds) Pro natura—festskrift til Hans Christian Bugge. Universitetsforlaget, Oslo, pp 323–345
Moser D, Ellmauer T, Evans D, Zulka KP, Adam M, Dullinger S, Essl F (2016) Weak agreement between
the species conservation status assessments of the European Habitats Directive and Red Lists. Biol
Conserv. doi:10.1016/j.biocon.2016.03.024
Ojalammi S, Blomley N (2015) Dancing with wolves: making legal territory in a more-than-human world.
Geoforum 62:51–60
Redpath SM, Young J, Evely A, Adams WM, Sutherland WJ, Whitehouse A, Amar A, Lambert RA, Linnell
JDC, Watt A, Gutierrez RJ (2013) Understanding and managing conservation conflicts. Trends Ecol
Evol 28:100–109
Sanderson FJ, Pople RG, Ieronymidou C, Burfield IJ, Gregory RD, Willis SG, Howard C, Stephens PA,
Beresford AE, Donald PF (2015) Assessing the performance of EU nature legislation in protecting
target bird species in an era of climate change. Conservation Letters 9:172–180
Schoukens H, Bastmeijer CJ (2015) Species protection in the European Union: how strict is strict? In: Born
C, Cliquet A, Schoukens H, Misonne D, Van Hoorick G (eds) The Habitats Directive in its EU
environmental law context: European nature’s best hope?. Routledge, London, pp 121–146
Selier SAJ, Slotow R, Blackmore A, Trouwborst A (2016) The legal challenges of transboundary wildlife
management at the population level: the case of a trilateral elephant population in southern Africa. J Int
Wildl Law Policy 19:101
Shine C (2005) Legal report on the possible need to amend Appendix II of the Convention for the wolf. Bern
Convention Doc. T-PVS/Inf(2005)18
Stone Sweet A (2011) The European Court of Justice. In: Craig P, De Bu
´rca G (eds) The evolution of EU
law, 2nd edn. Oxford University Press, Oxford, pp 121–153
Treves A, Chapron G, Lo
´pez-Bao JV, Shoemaker C, Goeckner AR, Bruskotter JT (2015) Predators and the
public trust. Biological Reviews (published online 3 November 2015)
Trouwborst A (2010) Managing the carnivore comeback: international and EU species protection law and
the return of lynx, wolf and bear to Western Europe. J Environ Law 22:347–372
Trouwborst A (2011) Conserving European biodiversity in a changing climate: the Bern Convention, the EU
Birds and Habitats Directives and the adaptation of nature to climate change. Rev Eur Community Int
Environ Law 20:62–77
Trouwborst A (2014a) Exploring the legal status of wolf-dog hybrids and other dubious animals: interna-
tional and EU law and the wildlife conservation problem of hybridization with domestic and alien
species. Rev Eur, Comp Int Environ Law 23:111–124
Trouwborst A (2014b) Living with success—and with wolves: addressing the legal issues raised by the
unexpected homecoming of a controversial carnivore. Eur Energy Environ Law Rev 23:89–101
Trouwborst A (2014c) The EU Habitats Directive and wolf conservation and management on the Iberian
Peninsula: a legal perspective. Galemys—Spanish J Mammal 26:15–30
Trouwborst A (2014d) The Habitats Directive and climate change: is the law climate proof? In: Born C,
Cliquet A, Schoukens H, Misonne D, Van Hoorick G (eds) The Habitats Directive in its EU envi-
ronmental law context: European nature’s best hope?. Routledge, London, pp 303–324
Trouwborst A (2015a) Global large carnivore conservation and international law. Biodivers Conserv
24:1567–1588
60 Biodivers Conserv (2017) 26:37–61
123
Content courtesy of Springer Nature, terms of use apply. Rights reserved.
Trouwborst A (2015b) Law and conservation conflicts. In: Redpath SM, Gutie
´rrez RJ, Wood KA, Young JC
(eds) Conflicts in conservation: navigating towards solutions. Cambridge University Press, Cambridge,
pp 108–118
Trouwborst A (2016a) The practice of shared responsibility in relation to nature conservation. In:
Plakokefalos I, Nollkaemper A (eds) The practice of shared responsibility in international law.
Cambridge University Press, Cambridge
Trouwborst A (2016b) Wildlife and landscapes. In: Kulovesi K, Morgera E (eds) Research handbook on
international law and natural resources. Edward Elgar, Cheltenham
Trouwborst A, Krofel M, Linnell JDC (2015) Legal implications of range expansions in a terrestrial
carnivore: the case of the golden jackal (Canis aureus) in Europe. Biodivers Conserv 24:2593–2610
Trouwborst A, Fleurke FM, Dubrulle JSV (2016) Border fences and their impacts on large carnivores, large
herbivores and biodiversity—an international willdife law perspective. Rev Eur, Comp Int Environ
Law (in press)
Verschuuren JM (2003) Effectiveness of nature protection legislation in the EU and the US: the Birds and
Habitats Directives and the Endangered Species Act. Yearb Eur Environ Law 3:305–328
Wandesforde-Smith G, Watts NSJ (2014) Wildlife conservation and protected areas: politics, procedure, and
the performance of failure under the EU Birds and Habitats Directives. J Int Wildl Law Policy
17:62–80
Biodivers Conserv (2017) 26:37–61 61
123
Content courtesy of Springer Nature, terms of use apply. Rights reserved.
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... Measures of potential state could help to make assessments of conservation status more systematic. The effectiveness of baselines in conservation legislation can be hindered by unclear guidance on their use Trouwborst et al., 2017). For example, European Union countries are required to maintain selected species at, or restore them to, "favourable conservation status" with respect to their abundance, distribution and habitat (European Commission, 1992) and to report trends in status over 12-year rolling windows (European Commission, 2016). ...
... For example, European Union countries are required to maintain selected species at, or restore them to, "favourable conservation status" with respect to their abundance, distribution and habitat (European Commission, 1992) and to report trends in status over 12-year rolling windows (European Commission, 2016). Despite this central role in legislation, surprising ambiguity exists over how baselines for assessing whether species are in a favourable or unfavourable state should be determined and interpreted Trouwborst et al., 2017). Consequently, legislation can be applied inconsistently across different regions due to variation in interpretation of how to deploy baselines, as well as in the timing and quality of baseline data (McConville and Tucker, 2015). ...
... Our study introduces a systematic approach for assessing the status of species' distributions by simulating potential ranges based on speciesenvironment relationships. Our approach provides a step forward in resolving a major contemporary problem in conservation assessment: how to set baselines in conservation consistently (Trouwborst et al., 2017). Following Rodrigues et al. (2019), we used conceptual reference states representing species' ranges that would likely occur now in the absence of past human impacts. ...
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Assessments of conservation status are typically based on short-term extinction risk, but the value of indicators that compare the current state of species (e.g., abundance or distribution) to potential baselines is increasingly recognised. The use of baselines in conservation legislation is hindered by ambiguity in how baselines should be determined and interpreted, leading to inconsistent application. Here, we explored the use of species’ potential ranges as a consistent means of quantifying baselines for assessing species’ distributions, a key component of conservation status. Using breeding birds of Great Britain (GB) as a case study, we simulated where bird species would be expected to occur today in a modelled world without human land use. We calculated indices that contrasted these potential human-free ranges with realised ranges. Our analyses revealed that 42% of GB birds have wider realised than potential ranges and 28% have narrower realised than potential ranges. These indices could lead to reassessments of current conservation priorities. Eighteen species assigned ‘least concern’ status by the GB regional IUCN Red List had much narrower realised than potential ranges, suggesting that their ranges are in a more degraded state than currently recognised by Red List criteria. Some of these species are not under active conservation management and could be candidates for higher prioritisation. Our approach provides a systematic means of quantifying range baselines that is not reliant on variable historic data or expert opinion and, thereby, provides a step forward in resolving a major contemporary problem in conservation assessment: how to set baselines in conservation consistently. The insights produced are also of wider scientific and cultural relevance, revealing where species would likely exist today in the absence of historic human impacts. This could be used to identify areas where targeted restoration actions might lead to the return of historically extirpated species, or even to novel colonists.
... A conservation status is considered 'favourable' when three cumulative components are met: (i) population dynamics data of the golden jackal indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, (ii) the natural range of the golden jackal is neither being reduced nor is likely to be reduced for the foreseeable future, and (iii) there is, and will probably continue to be, a sufficiently large habitat to maintain the golden jackal's populations on a long-term basis (Article 1(i)). The precise meaning of the term FCS remains subject to some confusion and controversy (Epstein et al. 2016;Trouwborst et al. 2017b). Uncertainty remains, for instance, regarding the important question at what level the FCS should be achieved and measured precisely-especially, whether population dynamics data must be obtained and applied for the territory of each Member State, or for the entire EU, or at the level of concrete (transboundary) populations, or otherwise (Epstein et al. 2016;Trouwborst et al. 2017b). ...
... The precise meaning of the term FCS remains subject to some confusion and controversy (Epstein et al. 2016;Trouwborst et al. 2017b). Uncertainty remains, for instance, regarding the important question at what level the FCS should be achieved and measured precisely-especially, whether population dynamics data must be obtained and applied for the territory of each Member State, or for the entire EU, or at the level of concrete (transboundary) populations, or otherwise (Epstein et al. 2016;Trouwborst et al. 2017b). In a recent ruling, however, the Court of Justice of the EU provided some further clarity, in a case concerning the hunting of wolves (Canis lupus) in Finland (Case C-674/17, 10 October 2019). ...
... 56). Unfortunately, the Court did not explain under what conditions precisely a transboundary approach is appropriate, including the question whether it is necessary to have in place a transboundary population-level management plan (see Linnell et al. 2008;Trouwborst et al. 2017b). The ruling does clarify that no account may be taken of those parts of a transboundary population which are located in non-EU Member States which are 'not bound by an obligation of strict protection of species of interest for the European Union' (Case C-674/17, par. ...
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Conflicts have emerged due to range expansions of the golden jackal (Canis aureus) across Europe, characterized by their international conservation status and perceived impacts on livestock and native prey species. Most countries in Central Europe do not yet include the golden jackal in their national list of occurring, native species. Nevertheless, legal obligations arise as soon as golden jackals colonize a particular country. Legal implications of this range expansion were described in past studies from an international perspective. However, they left out specifics on the legal status within any particular country. Therefore, we examine the actual legal status within Central European countries, exemplifying the diverse federal and provincial laws. In particular, we assess the current conservation and hunting laws in Austria’s provinces and discuss them in the context of neighbouring countries to analyse implications for relevant authorities. We found substantial contrasts not only among provinces but also between direct neighbouring countries, impeding efforts for transboundary species conservation and leading to complications regarding the management of this species. Improved procedures for collecting records and hunting-bag data appear necessary for future species assessment on a European level and management on a local level. We recommend a more unified legal system but adjusted to actual golden jackal presence on the regional and cross-border level, combined assessment, or similar management strategies to minimize conflicts, reduce persecution, and clarify legal obligations.
... En los últimos años, varios autores (véase, por ejemplo, Epstein et al. 2016;Trouwborst et al. 2017) han trabajado en la interpretación y la correcta aplicación de este concepto. En cuanto al término "favorable," éste conlleva un alcance más allá de "escapar de la extinción" para una concreta población de determinada especie contemplada en la Directiva. ...
... de las especies para cumplir con las exigencias de alcanzar y mantener su estado favorable de conservación está influenciado además de por variables de tipo ecológico y jurídico, también por consideraciones socioeconómicas y culturales, por lo que es importante diferenciar entre el número de ejemplares necesarios para cumplir con las obligaciones de la Directiva Hábitats (el mínimo legalmente obligatorio según el marco legal europeo) y los que son necesarios para satisfacer las necesidades de la sociedad del país en concreto (el cual estará sujeto a las decisiones generadas en el debate del país que se trate)(Trouwborst et al. 2017).Por otra parte, para llevar a cabo una interpretación lo más correcta posible del concepto en el contexto jurídico de la Unión Europea, debe necesariamente la misma identificar y apoyarse en aquella interpretación que pueda ser respaldada por el TJUE de la manera más concluyente posible. Por esta razón cobran especial significado estas dos sentencias. ...
Article
El lobo (Canis lupus), al igual que otros grandes carnívoros, está recuperando su antiguo territorio en el continente europeo. Esta situación supone una mayor interacción con el ser humano, por lo que es necesario establecer un nuevo paradigma en la relación entre seres humanos y lobos. La doctrina del Tribunal de Justicia de la Unión Europea (TJUE) determina en gran parte la aplicación efectiva y uniforme de la legislación de la Unión Europea ante cualquier tipo de situaciones inéditas. Este artículo supone una aproximación a la situación jurídica del lobo en Europa. Se analizan, pues, las dos últimas sentencias pronunciadas por el TJUE en 2019 y 2020, donde se consideran cuestiones relacionadas con la aplicación de la caza para llevar a cabo su gestión en un Estado miembro de la UE, y con la conservación de la especie independientemente de dónde se encuentre, incluyendo paisajes humanizados. Estas sentencias tienen consecuencias para la gestión de la especie en los Estados miembros de la Unión Europea. Además, nos centramos en sus repercusiones en España, donde la especie se encuentra bajo un escenario de gestión complejo.
... En los últimos años, varios autores (véase, por ejemplo, Epstein et al. 2016;Trouwborst et al. 2017) han trabajado en la interpretación y la correcta aplicación de este concepto. En cuanto al término "favorable," éste conlleva un alcance más allá de "escapar de la extinción" para una concreta población de determinada especie contemplada en la Directiva. ...
... de las especies para cumplir con las exigencias de alcanzar y mantener su estado favorable de conservación está influenciado además de por variables de tipo ecológico y jurídico, también por consideraciones socioeconómicas y culturales, por lo que es importante diferenciar entre el número de ejemplares necesarios para cumplir con las obligaciones de la Directiva Hábitats (el mínimo legalmente obligatorio según el marco legal europeo) y los que son necesarios para satisfacer las necesidades de la sociedad del país en concreto (el cual estará sujeto a las decisiones generadas en el debate del país que se trate)(Trouwborst et al. 2017).Por otra parte, para llevar a cabo una interpretación lo más correcta posible del concepto en el contexto jurídico de la Unión Europea, debe necesariamente la misma identificar y apoyarse en aquella interpretación que pueda ser respaldada por el TJUE de la manera más concluyente posible. Por esta razón cobran especial significado estas dos sentencias. ...
... A sustainable long-term conservation strategy requires a multidisciplinary understanding of spatial, ecological and social sciences (Andreassen et al., 2018;Johansson et al., 2016;Trouwborst et al., 2017). This study contributes to a better understanding of the social conflict related to the role of trust in research, and how researchers are perceived by the public as providers of knowledge. ...
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Human–wildlife interactions occur when humans and wildlife overlap in the same landscapes. Due to the growing human population, the number of interactions will continue to increase, and in some cases, develop further into social conflicts. Conflicts may occur between people disagreeing about wildlife conservation or arguing over which wildlife management measures should be taken. Social conflicts between humans are based on different attitudes, values and land‐use aspirations. The success of solving these social conflicts strongly depends on building trust between the public, stakeholders, authorities and researchers, as trust is fundamental to all communication and dialogue. Here we have examined how trust in large carnivore research differs within a geographically stratified sample of the Norwegian population. The comprehensive survey, including 2,110 respondents, allows us to explore how people perceive factual statements about large carnivores depending on the source of these statements. Specifically, the respondents were given multiple statements and asked to judge them in terms of meaning and authenticity depending on whether the statements were made by a politician, the Norwegian farmers' association, the Norwegian Fish and Game association or a large carnivore researcher. Based on the variations in perceptions, we inferred that trust in large carnivore researchers and their research results varied with people's attitudes, values and direct experience of large carnivores. In general, respondents perceived 60% of the statements to be genuine when given no information of who had made them. Although this increased to 75% when informed that the statements were made by a large carnivore researcher, there was still a 25% probability that the statement was perceived as manipulative or political. Age, environmental values and negative experiences of carnivores increased the probability of perceiving research statements as manipulative or political. People living in areas with high proportions of hunters showed particularly polarized views, either more strongly perceiving the statements as political, or in contrast as research. This study provides a novel perspective in understanding the role trust plays in social conflicts related to human–wildlife interactions. A free Plain Language Summary can be found within the Supporting Information of this article. A free Plain Language Summary can be found within the Supporting Information of this article.
... It is important to recognize that a population target differs from a Favourable Reference Population (FRP), which is legally required and defined as the minimum abundance required to sustain an ecologically functional population according to the EU Habitats Directive (Trouwborst et al. 2017). Rather, a population target is to be set above the FRP to help address economic, cultural, recreational, or other societal considerations. ...
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Most European goose populations have increased exponentially, and this has increasingly brought them into conflict with human activities. To manage this conflict, we used multi-criteria decision analysis to help set population targets for a super-abundant population of greylag geese ( Anser anser ). We relied on expert elicitation to assess the consequences of varying goose abundance on nine ecological, economic, and societal objectives. Representatives from national governments and from non-governmental organizations then weighted the objectives based on their perceived relative importance, and we used a consensus-convergence model to reach stakeholder agreement on the tradeoffs among objectives. The preferred population targets for two management units represent about a 20% reduction from current abundances, which from a management perspective would require considerable effort above and beyond current population-control measures. We believe that multi-criteria decision analysis can provide a systematic and transparent framework for building consensus among diverse stakeholders in a wide array of human-wildlife conflicts.
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Scientific evidence suggests that emotions affect actual human decision-making, particularly in highly emotionally situations such as human-wildlife interactions. In this study we assess the role of fear on preferences for wildlife conservation, using a discrete choice experiment. The sample was split into two treatment groups and a control. In the treatment groups the emotion of fear towards wildlife was manipulated using two different pictures of a wolf, one fearful and one reassuring, which were presented to respondents during the experiment. Results were different for the two treatments. The assurance treatment lead to higher preferences and willingness to pay for the wolf, compared to the fear treatment and the control, for several population sizes. On the other hand, the impact of the fear treatment was lower than expected and only significant for large populations of wolves, in excess of 50 specimen. Overall, the study suggests that emotional choices may represent a source of concern for the assessment of stable preferences. The impact of emotional choices is likely to be greater in situations where a wildlife-related topic is highly emphasized, positively or negatively, by social networks, mass media, and opinion leaders. When stated preferences towards wildlife are affected by the emotional state of fear due to contextual external stimuli, welfare analysis does not reflect stable individual preferences and may lead to sub-optimal conservation policies. Therefore, while more research is recommended for a more accurate assessment, it is advised to control the decision context during surveys for potential emotional choices.
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With the legal protection of wolves in Sweden as an object of study, this dissertation examines how bodies often perceived as legal, social or natural entangle in a common co-production of law. The thesis begins with an analysis of how entanglements of nature, society and law have been discussed in environmental legal scholarship, with a main focus on the Uppsala Environmental Legal Method and Critical Environmental Law. Concepts from New Materialism and Legal Pluralism are then explored in order to contribute to the development of an understanding of law as co-produced in a mesh of entangled bodies in the landscape. Applying these concepts and discussions on legal protection of wolves, legal acts and institutions involved in the management of wolves are analysed through their entanglement with other bodies in the landscape. Special focus is set on legal hunting and a series of judgements concerning licenced hunting on wolves as well as on the entanglement of formal and informal norms in hunting communities. The wolf is reimagined as co-producing its legal protection through its entanglements with bodies such as human discourses and not least the law itself. The result is a reassembling of the legal protection of wolves in Sweden as a rhizome where law is co-produced through entanglements of multiplicities of bodies, only some of which are commonly viewed as legal. This understanding opens up legal analysis for a broader search for knowledges and solutions, which in turn can facilitate the co-existence of wolves and people in shared landscapes. The thesis also contributes to a general theory of entangled law by its discussion of a new materialist legal pluralism as well as the application of these theories on the issue of legal protection of wolves in Sweden.
Article
• This paper describes the tensions between the legal requirements for conservation and the most beneficial biological practice for mobile transnational marine species, using the harbour porpoise (Phocoena phocoena) in European Atlantic waters as a case study. • Harbour porpoise are the smallest and one of the most abundant cetaceans occurring throughout the European continental shelf waters, and are affected by human activities occurring in the same waters, especially certain fishing activities. • The Convention on the Conservation of European Wildlife and Natural Habitats (the Bern Convention) and its implementing legislation the Council Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora 92/43/EEC (i.e. the Habitats Directive) are the main legal drivers for species conservation throughout the European Union. They aim for the long-term achievement of favourable conservation status and make provision for the use of two conservation measures: protected areas and strict protection measures. The strict protection measures aim to ensure that all forms of deliberate killing are prevented, and that where incidental killing and capture occurs, it does not have a negative effect on conservation status. • The conservation of harbour porpoise is currently dependent upon tackling the key issue of bycatch in fisheries. However, in challenges to Member States on their application of the Habitats Directive, the European Commission has chosen to focus on site designation rather than the implementation of the strict protection measures required to monitor and, where necessary, reduce bycatch. • This tension between a legal focus on the designation of protected areas instead of tackling threats such as bycatch has potentially led to negative conservation consequences for harbour porpoise and, in part, may explain why wider marine biodiversity has continued to deteriorate in Europe.
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Based on Article 17 of the Habitats Directive (Council Directive 92/43/EEC) all EU member states have to report at six-year intervals on the conservation status of the natural habitat types (Annex I) and of the species listed in Annex II. This article focuses on the methods for assessing the conservation status for Eurasian lynx (Lynx lynx) and wolfs (Canis lupus) in Germany. The “range” and “population” parameters are discussed in detail with regard to the scientific basis and methodological approach applied for the assessment. In addition, the findings of the national report for the period 2013 – 2018 for lynx and wolfs in the context of the Habitats Directive are explained, including the findings for the four parameters: “range”, “population”, “habitat for the species” and “future prospects”. Threats and main pressures are discussed briefly. The findings of the National Report 2019 for both species are compared with those from neighbouring countries.
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There is a pressing need to integrate large carnivore species into multi-use landscapes outside protected areas. However, an unclear understanding of coexistence hinders the realization of this goal. We provide a comprehensive conceptualization of coexistence in which mutual adaptations by both large carnivores and humans play a central role.
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The ongoing refugee crisis in Europe has seen many countries rush to construct border security fencing to divert or control the flow of people. This follows a trend of border fence construction across Eurasia during the post-9/11 era. This development has gone largely unnoticed by conservation biologists during an era in which, ironically, transboundary cooperation has emerged as a conservation paradigm. These fences represent a major threat to wildlife because they can cause mortality, obstruct access to seasonally important resources, and reduce effective population size. We summarise the extent of the issue and propose concrete mitigation measures. The Rise of Transboundary Conservation Conserving biodiversity on an increasingly crowded planet will always involve a combination of applying ecological knowledge and skilful politics. The art of successful conservation lies in aligning the best available knowledge with the appropriate management actions and the current political and economic realities. Accordingly, conservationists must constantly adjust their strategies to the prevailing opportunities and constraints within a constantly shifting environment. The period from the early 1980s through the dawn of the 21st century was marked by a fortuitous convergence of situations. Environmental awareness among the general population was PLOS Biology |
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More than 80% of the African elephant (Loxodonta africana) range in Africa still exists outside of formal protected areas, and sits across many administrative and political boundaries. These ranges comprise a matrix of multi-use landscapes of potentially divergent administrative, legal and political systems. It is further recognised that the evolution of the various human focused administrative systems, from an elephant conservation perspective, has been ad hoc and without integration. This has resulted in or facilitated a progressive encroachment on the natural range by human settlement and agricultural activities. The movement of elephant across international boundaries results in a parochial approach to their management, particularly within a context of increasing human-wildlife conflict, and an inconsistent consideration of ecological requirements of the elephant at a transboundary level, leading to a mismanagement of these populations, at a transboundary level. This study investigates the conservation and management of the Central Limpopo River Valley (CLRV) elephant population roaming between Botswana, South Africa and Zimbabwe, and utilizing the trilateral Greater Mapungubwe Transfrontier Conservation Area (GMTFCA). The desirability of conserving and managing wildlife at the level of the biological unit of the transboundary population is taken as a starting-point, following insights from transboundary large carnivore and waterbird species in Europe. The many legal and policy frameworks applicable to the CLRV elephant population are identified and tested against this approach. The current approach taken in respect of the CRLV elephant population meets the benchmark to a substantial degree, although some essential steps remain to be taken. We discuss potential adjustments to laws and policies that are required to ensure the ecological stability of transboundary elephant populations, and to provide for their collective management.
Chapter
Researchers are documenting a wide diversity of conflicts that emerge among stakeholders about biodiversity conservation (Redpath et al., 2013). This body of evidence challenges the often stated assumption that all biodiversity has positive benefits towards human well-being (Maier, 2013) as different stakeholders may have very different views on the costs and benefits of different situations. The reality is that while much biodiversity conservation (hereafter ‘conservation’) benefits many humans, there can be real economic or social costs for conservation. The extent to which a given biodiversity component or conservation action represents a service or a disservice can vary with scale. For example, species that represent ‘public goods’ in general may represent ‘public bads’ locally (Bostedt, 1999). Large carnivores are a classic example. Because the costs of economic and social conflicts resulting from their presence are felt locally, attitudes to these species are often significantly less positive in the areas where they occur than in distant areas and cities (Karlsson and Sjostrom, 2007; Box 15). However, the opposite situation may also occur. For example, in the harvest of wild ungulate populations the benefits (recreational opportunities, sale of licences and meat) of harvesting a ‘public good’ often fall to the local landownerwhile the costs (e.g. compensation for forest damage, vehicle collisions and infrastructure to mitigate vehicle collisions) usually fall on society as a whole (Kenward and Putman, 2011; Langbein et al., 2011; Reimoser and Putman, 2011).
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Landscapes and the wild plants and animals (wildlife) inhabiting them have long been, and continue to be, considered natural resources for humankind to make use of. This chapter explores the evolving role of international law in regulating such use. In particular, the focus is on international agreements concerning the conservation and/or sustainable use of wild flora and fauna and their habitats – nowadays often referred to as biodiversity – and landscapes.
Fences, walls and other barriers are proliferating along international borders on a global scale. These border fences not only affect people, but can also have unintended but important consequences for wildlife, inter alia by curtailing migrations and other movements, by fragmenting populations and by causing direct mortality, for instance through entanglement. Large carnivores and large herbivores are especially vulnerable to these impacts. This article analyses the various impacts of border fences on wildlife around the world from a law and policy perspective, focusing on international wildlife law in particular. Relevant provisions from a range of global and regional legal instruments are identified and analysed, with special attention for the Bonn Convention on Migratory Species and the European Union Habitats Directive.
Article
Fences, walls and other barriers are proliferating along international borders on a global scale. These border fences not only affect people, but can also have unintended but important consequences for wildlife, inter alia by curtailing migrations and other movements, by fragmenting populations and by causing direct mortality, for instance through entanglement. Large carnivores and large herbivores are especially vulnerable to these impacts. This article analyses the various impacts of border fences on wildlife around the world from a law and policy perspective, focusing on international wildlife law in particular. Relevant provisions from a range of global and regional legal instruments are identified and analysed, with special attention for the Bonn Convention on Migratory Species and the European Union Habitats Directive.