International Wildlife Law: Understanding and Enhancing Its Role in Conservation

Many conservation professionals are familiar with the Convention on International Trade in Endangered Species (CITES), the Convention on Migratory Species (CMS), the Convention on Biological Diversity (CBD), the Ramsar Convention, and the World Heritage Convention. Regional instruments, such as those focusing on Africa, Antarctica, or Europe, are also conspicuous features of the conservation arena. Other international wildlife agreements focus on particular species, such as polar bears or albatrosses, or particular transboundary protected areas, such as the huge Kavango-Zambezi Transfrontier Conservation Area (see table 1). These agreements are collectively known as international wildlife law (Bowman et al. 2010). The binding agreements themselves are typically accompanied and informed by an evolving set of nonbinding instruments, such as Conference of the Parties (COP) decisions and action plans. Overview of international legal instruments for wildlife conservation. Note: The table lists the most prominent global instruments and a wide selection of regional and species-specific instruments, as well as illustrative examples of site-specific and bilateral instruments. All listed instruments are legally binding except the MoUs and SSIs. Source: Data on participation were taken from treaties’ websites, Ecolex (www.ecolex.org) and the University of Oregon's International Environmental Agreements Database (http://iea.uoregon.edu). Abbreviations: NA, not applicable; NIF, not in force; MoU, Memorandum of Understanding; MS, member states; P, parties; R, ratifications; RS, range states; S, signatories; SSI, Special Species Initiative. In our experience, some conservationists harbor high (and possibly unrealistic) hopes about what international wildlife law can achieve. Others are extremely skeptical, viewing wildlife treaties as paper tigers and their COPs as a waste of resources. Still others are simply unsure of the relevance of these intergovernmental affairs. Confusion, ignorance, and misinterpretation are common. Our view is that international wildlife law offers significant opportunities for conservation success and has promising but largely unfulfilled potential. We explore concisely the limitations of international wildlife regimes, as well as their actual and potential contributions to biodiversity conservation. We then argue that it is worthwhile to invest in making the most of international wildlife law for conservation by following a selective, informed approach. To that end, we issue a call for increased cooperation between international wildlife lawyers and other conservation professionals. Law is but one of many tools that can be used to achieve conservation objectives, and the formal institutions of law operate within a broader context that includes informal institutions (Ostrom 1999). International law occupies an even smaller place within the conservation toolbox. Some of its limitations stem from the basic premises of public international law, whereby sovereign states conclude agreements on a voluntary basis in an international legal order that lacks the centralized legislative, executive, and judicial powers typical of domestic legal orders. In this setting, broadly proclaimed intentions to halt and reverse biodiversity loss have hitherto proven impossible to achieve in practice. Compliance is generally imperfect, with implementation and enforcement failures affecting even the most sophisticated legal instruments (Bowman et al. 2010, ­López-Bao et al. 2015, Wandesforde-Smith 2016, Chapron et al. 2017). Ideological differences between treaty parties pose another challenge, clearly evident in the recurrent debate within CITES over the relative weight to be given to strict protection versus sustainable use of rhinoceroses and elephants (Couzens 2014, Wandesforde-Smith 2016). Similar strife within the International Convention for the Regulation of Whaling (ICRW) threatens to render this regime dysfunctional (Couzens 2014). To be effective, international legal instruments must include clear and adequate commitments, attract sufficient parties, and ensure a sufficient degree of compliance (Bowman 2000). Instruments vary in the degree to which they meet these criteria. Wildlife treaty negotiations are invariably affected by the apparent tension between attracting sufficient parties and the other two criteria, and many treaty texts reflect ensuing compromises. For instance, although nearly all states in the world quickly ratified the CBD, most of its obligations are, in legal terms, diminished by the qualification that they be fulfilled “as far as possible and as appropriate.” In addition, the convention lacks effective compliance mechanisms. Several treaties cater to country-specific exceptions by allowing reservations, a process whereby a state, when it becomes a party or when a new obligation is adopted, limits the scope of the treaty vis-à-vis that state—such as the reservation to the zero quota for commercial whaling lodged by Iceland upon rejoining the ICRW in 2002 and the reservations regarding wolves (Canis lupus) filed by 14 Bern Convention parties. Essentially, international law ­cannot accomplish more than what the world's diverse and changeable national administrations, and ultimately the societies they represent, want it to—or are capable of realistically implementing. The hitherto less-than-satisfactory contribution of international wildlife law to addressing biodiversity loss reflects at least in part, then, an overall reluctance of governments and societies to impose long-term and enforceable constraints on economic development and other human ambitions (Wandesforde-Smith 2016). Expectations of what international wildlife law can deliver must accommodate this reality, especially because some of the competing aspirations may also be backed by legal commitments (e.g., trade agreements). Clearly, besides international wildlife law, conservation success is also affected by international law addressing climate change, crime, economic integration, fisheries, pollution, and trade. Regardless, for many species and ecosystems, effective conservation calls for cross-border approaches and long-term commitments. Despite its limitations, international law remains the preeminent mechanism for realizing these (Bowman et al. 2010, Trouwborst 2015, Bowman 2016). Regarding the temporal aspect, international treaties evolve relatively slowly, and states rarely withdraw from treaties once they have joined them. Therefore, treaties can offer a legal buffer against the election-cycle swings of national governance. In a more general sense, international law serves as a moral compass, reminding governments and the public of their commitments to conservation. International legal instruments have produced many positive conservation outcomes, including (a) the designation of protected areas pursuant to international ­obligations; (b) similarly instigated national ­legislation regulating wildlife exploitation; (c) enhanced priority for conservation issues on governments’ agendas; (d) incorporation of technical guidance adopted by COPs and other treaty bodies into national action plans and legislation; (e) coordinated collection of data; (f) increased cooperation among and between governmental and nongovernmental stakeholders; (g) direct assistance to conservation initiatives through treaties’ funding mechanisms; and (h) many instances in which harmful developments were blocked or particular conservation actions taken when governments were confronted with their international obligations in national or international court proceedings or through compliance mechanisms (Bowman et al. 2010, Gillespie 2011, Fleurke and Trouwborst 2014, Trouwborst 2015, Bowman 2016, Scott 2016). To illustrate, despite certain limitations and an imperfect compliance record (Wandesforde-Smith 2016, Zhou et al. 2016), CITES tangibly contributes to the conservation of species harmed by trade (OECD 2000, Doukakis 2012, Couzens 2014). For instance, the conservation status of jaguars (Panthera onca) and other South American felids notably improved after a CITES ban on trade in their pelts took effect in 1975 (Di Marco et al. 2014). Similarly, the European Union's (EU’s) “Nature Directives” are comparatively effective conservation instruments, resulting from both the clear limits they impose on EU member states’ discretion and the special nature of EU law, entailing powerful enforcement options at national and European levels (Fleurke and Trouwborst 2014, Born et al. 2015, Milieu et al. 2016). In particular, many species have profited from protection of their habitats in the Natura 2000 protected area network and from restrictions placed on their exploitation (Fleurke and Trouwborst 2014, Sanderson et al. 2015, Boitani and Linnell 2015). Likewise, the Ross Sea ecosystem is likely to benefit from the recent international agreement to designate large parts of it as a marine protected area. Even regimes operating on slim budgets, such as the Agreement on the Conservation of African-Eurasian Migratory Waterbirds (AEWA) and the Bern Convention on the Conservation of European Wildlife and Natural Habitats, can add real value (Lewis 2016) and sometimes show real teeth (Trouwborst forthcoming). We concur with Bowman and colleagues (2010) that there is “cause for optimism in the extent to which international wildlife law is permeating national policy discourse, legal instruments, and (slowly) judicial decision-making.” International wildlife law is increasingly invoked before national courts—aided by instruments such as the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters—and domestic legislative implementation and enforcement continue to be scrutinized by international bodies monitoring and promoting compliance with international obligations (Bowman 2010, Scott 2016). Furthermore, we note the growing influence of international courts, as was illustrated by the 2014–2015 Serengeti highway rulings by the East African Court of Justice; the key role of the Court of Justice of the EU in enforcing the Nature Directives; and the increasing number of cases involving wildlife law brought before the International Court of Justice. The breadth of the opportunities offered by international wildlife law is indicated by the number and variety of legal instruments in table 1. The various ways in which these instruments can contribute to conservation are summarized in figure 1. The usefulness of international wildlife law can thus be maximized in many ways, with diverse actors having a role to play, including civil servants administering or implementing treaties, scientists involved in advisory bodies or monitoring, and NGOs influencing intergovernmental agendas and coaxing or forcing governments into compliance. Ways in which international wildlife law can deliver conservation outcomes. We advocate a strategic approach. First, investing in the implementation or improvement of an international regime may not in every instance be the best way to spend scarce conservation resources. Second, international wildlife law instruments present a mixture of approaches and mechanisms; optimizing their conservation impact may call for different methods in different circumstances. When this can be done through facilitation rather than confrontation, without sparking resistance, all the better, because such resistance may undermine long-term support for the legal framework itself (Borgström 2012, Redpath et al. 2017). In certain instances, however, litigation or other adversarial tactics will be essential to ensure compliance, even as we bear in mind that international agreements are intended to overrule national, regional, and local interests when the latter conflict with the agreement's objectives (Chapron et al. 2017). A distinct role is reserved for legal experts and expertise, especially in combination with conservation professionals and expertise from other disciplines. There are many situations in which socioecological information can improve the application of conservation law and in which legal information can improve biodiversity conservation. Sometimes, this can be a simple matter of drawing the attention of those on the front lines of conservation to potentially useful legal tools. The books by Bowman and colleagues (2010) and Gillespie (2011) provide good starting points. Another tactic is to remind national authorities and committees drafting domestic conservation laws, policies, or plans of the often-little-known wealth of detailed guidance adopted by COPs. At other times, more intricate and tailored legal exercises will be required. One lesson drawn from past experience is that even apparently vague treaty provisions can have surprisingly far-reaching consequences when interpreted in light of treaty objectives, interpretive guidance adopted by the parties, and/or scientific knowledge regarding a particular conservation issue (Bowman et al. 2010). Despite the widespread recognition of the importance of law to wildlife conservation (Freyfogle 2006), legal methodology is still a relatively unfamiliar feature within the multidisciplinary conservation literature and among conservation practitioners (Chapron et al. 2017). International law research methodology consists primarily of the identification, analysis, and application of legal instruments, including their interpretation according to the format codified in the Vienna Convention on the Law of Treaties (1969). Such analysis gains in utility when combined with insights regarding the ecological, socioeconomic, and cultural aspects of the issues involved. It is especially worthwhile when conservationists from other disciplines work with international wildlife lawyers to clarify the implications of international instruments for given issues; to identify gaps and inconsistencies in the legal framework; and, above all, to identify and pursue avenues toward improving the application of the law and, where needed, the law itself. This includes improving our insight into the role of law regarding conservation conflicts and our understanding of when it is most effective to use the full weight of the law rather than taking a more cooperative approach (Redpath et al. 2015, Redpath et al. 2017). International wildlife law litigation itself is also typically a multidisciplinary undertaking. Other appropriate settings for said cooperation include wildlife regimes’ technical and advisory bodies, International Union for Conservation of Nature (IUCN) Specialist Groups, and Society for Conservation Biology (SCB) policy committees. For instance, the idea to develop AEWA’s Implementation Review Process (established by AEWA Resolution 4.6) originated from a lawyer, but the agreement's multidisciplinary Technical Committee is involved in assessing whether proposed cases are appropriate, and initiation of the process may result in onsite assessments by multidisciplinary teams of experts. Another example is the Scientific and Technical Review Panel of the Ramsar Convention, which has a distinctly multidisciplinary membership and is currently chaired by an international wildlife lawyer. Examples of joint research include Cliquet and colleagues (2009), addressing climate change adaptation; Beninde and colleagues (2015), addressing invasive alien species; Trouwborst and colleagues (2015), addressing the legal status of golden jackals (Canis aureus) colonizing countries beyond their historic range; Epstein and colleagues (2016) and Trouwborst and colleagues (2017), addressing the Habitats Directive's “favourable conservation status” concept; Selier and colleagues (2016), addressing the management of a transboundary elephant population; Linnell and colleagues (2016), addressing border security fences; and Redpath and colleagues (2017), addressing collaborative approaches to large carnivore conservation. Of course, to make a meaningful contribution, such research must—and fortunately, regularly does—find its way into practice. For instance, the jackal research was undertaken in response to confusion regarding the species’ legal status in countries without historic records, such as the Baltic states. Specifically, the study mapped the jackal's remarkable range expansion beyond its historic distribution and combined this with an interpretive analysis of the international legal framework. This multidisciplinary analysis demonstrated that, legally speaking, the jackals ought to be treated as part of Europe's dynamic native fauna rather than as an alien species and was instrumental in the jackal's removal from several countries’ alien species lists. With their long-term, legally binding commitments on a transboundary scale, international legal instruments can be important, sometimes-indispensable implements in the conservation toolbox. Having explored why international wildlife law matters and what can and cannot be expected of it, we are convinced that by joining forces, lawyers and other conservation professionals can improve the contribution of international wildlife law to biodiversity conservation. There is much to be gained, partly by enhancing the legal framework itself but especially by seizing the many opportunities offered for advancing the effective application of the law as it stands. We hope that this article can be a useful step along this path. We gratefully acknowledge valuable input by Kees Bastmeijer, Sanja Bogojevic, Jennifer Dubrulle, and Han Somsen.