From Sleeping Treaties to the Giddy Insomnia of Global Governance: How International Wildlife Law Makes Headway

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Acknowledgments

Notes

Simon Lyster, International Wildlife Law: An Analysis of International Treaties Concerned with the Conservation of Wildlife (1985) hereinafter International Wildlife Law. At the time, Lyster's work was sponsored by the Research Centre for International Law at the University of Cambridge, in association with the International Union for the Conservation of Nature and Natural Resources (IUCN). The work was first published by Grotius Publications, republished by Cambridge University Press in 1993, and reprinted in 1994. Lyster read law at Cambridge and subsequently qualified to practice law in both Britain and the United States. By the mid-1990s, he had become a consultant to the World Wildlife Fund and Defenders of Wildlife.

Michael Bowman, Peter Davis & Catherine Redgwell, Lyster's International Wildlife Law (2nd ed. 2010) hereinafter Lyster's International Wildlife Law.

The bulk of an earlier text on wildlife law, first published in 1977, was taken up with federal wildlife law but did add an international section, constituting one chapter (chap. 14) out of fourteen. See Michael Bean & Melanie Rowland, The Evolution of National Wildlife Law (3rd ed. 1997) at 468–513. Thomas Lund's American Wildlife Law (1980) omitted international topics. Within the context of texts dealing with international environmental law, wildlife law generally receives some treatment. In David Hunter, James Salzman & Durwood Zaelke, International Environmental Law and Policy (3rd ed. 2007), for example, two of the 20 chapters in a text running in excess of 1,500 pages deal with wildlife and biodiversity (chap. 15) and protection of habitat (chap. 16), and there is some additional attention to wildlife issues in the chapter on oceans and seas (chap. 12). This is comparable to the attention international wildlife law receives in another standard contemporary text. See Philippe Sands, Principles of International Environmental Law (2nd ed. 2003). Earlier international environmental law texts had much less treatment of the subject, partly because they were busy explaining international law and differentiating it from domestic law. See, for example, the one chapter (chap. 10) out of 13 in Lakshman Guruswamy, Geoffrey Palmer & Burns Weston, International Environmental Law & World Order (1994). When, finally, wildlife law got its place in the sun among a growing number of increasingly specialized environmental law texts, with the publication of Dale Goble & Eric Freyfogle, Wildlife Law (2002 and 2nd ed. 2010), and John Copeland Nagle & J. B. Ruhl, The Law of Biodiversity & Ecosystem Management (2002), international wildlife law again struggled for attention, being the subject of only one chapter in each of these books. Between International Wildlife Law, supra note 1, and Lyster's International Wildlife Law, supra note 2, then, international wildlife law lacked extensive and authoritative treatment and was, thus, a limited world in the legal scheme of things as reflected in widely used texts.

International Wildlife Law, supra note 1, at xv.

Lyster notes forestry conservation laws in Babylon dating back to 1900 BC, nature reserves created by King Akhenaten in Egypt in 1370 BC, and the listing in the third century BC by a decree of Emperor Ashoka of India of certain animals that were not to be killed. Id. at xxi. Goble & Freyfogle, supra note 3, at 104 and 585, are content to begin their history of wildlife law in England in the ninth and tenth centuries and with the changes introduced after the Norman Conquest. They do not trace the origins of international wildlife law back before the late 19th century.

The relevant history is treated better in Lyster's International Wildlife Law, supra note 2, at 3–6, than in the original text, although neither book does as good a job of relating the rise of treaties to other developments in the politics and economics of Europe in the late 19th century as is done in Joseph Starke, An Introduction to International Law (10th ed. 1989) at 12–15.

International Wildlife Law, supra note 1, at 301.

Id.

Although Lyster deserves great credit for making these observations, his book does not, partly because of the early date it was written, come to grips at length with the ongoing operations of the major wildlife treaty regimes, with the soft law they produce, or with the mundane but essential details of State practice in giving effect to treaty provisions on the ground. The focus of his analysis stays pretty consistently, in other words, on legal language—what treaties say, how they ought to work in the best of all possible worlds, and what promise of better performance might be found in major developments occurring within the confines of treaty regime institutions themselves (in conferences of the parties, national reporting mechanisms, and scientific and technical advisory bodies, for example). The new book is much better, at probing into the institutional nooks and crannies, or interstitial spaces, that shape the internal dynamics of wildlife treaty regimes and of detecting their responsiveness to external factors, most notably pressure from NGOs, partly because the new book has a lot more evidence and experience to look at than did Lyster. Even in the new book, however, the inclination is to look within wildlife treaties and the institutions they create for explanations of how they work and how they might be improved upon, rather than to raise what many observers would take to be quite basic analytic questions. Readers of the chapter in the new book dealing with CITES, Lyster's International Wildlife Law, supra note 2, at 483–534, will be surprised to find no mention or acknowledgment of the critical perspectives on CITES that began to be articulated a decade or more ago. See, for example, Michael J. Glennon, Has International Law Failed the Elephant? 84 Am. J. Int’l L. 1–43 (1990); Endangered Species, Threatened Convention: The Past, Present and Future of CITES (Jon Hutton & Barnabas Dickson eds., 2000); The Trade in Wildlife: Regulation for Conservation (Sara Oldfield ed. 2003).

International Wildlife Law, supra note 1, Part II, at 15–94.

Id., Part III, at 95–177.

Id., in Part IV, at 179–181.

Id., at 181.

Id.

Id.

There is a good introduction to this organizational ecology in Pamela Chasek, David Downie, & Janet Welsh Brown, Global Environmental Politics (5th ed. 2010), ch. 2, especially if it is read in conjunction with the book's discussion, through case studies, of the development of international environmental regimes in chaps. 3, 4, and 5. Much the best and most detailed account of the history of the international environmental movement, an account that accords well with but also elaborates on the excellent outline history in the new book (Lyster's International Wildlife Law, supra note 2, at 3–23) appears in Lynton K. Caldwell, with Paul Weiland, International Environmental Policy: From the Twentieth to the Twenty-First Century (1996). See also John McCormick, The Global Environmental Movement (2nd ed. 1995).

Two interesting, recent perspectives on this evolution in wildlife governance arrangements around the world appear in Dan Brockington, Rosaleen Duffy & Jim Igoe, Nature Unbound: Conservation, Capitalism and the Future of Protected Areas (2008) and in Evolution and Innovation in Wildlife Conservation: Parks and Game Ranches to Transfrontier Conservation Areas (Helen Suich & Brian Child, assisted by Anna Spenceley, eds. 2009), discussed comparatively in Geoffrey Wandesforde-Smith, Nicholas Watts & Arielle Levine, Wildlife Conservation and Protected Areas: Darwin, Marx, and Modern Science in the Search for Patterns That Connect, 13 J. Int’l Wildlife L. & Pol’y 357–374 (2010).

The use of the word aggressive in this context is linked by Lyster to the provision of greater financial and technical resources to wildlife treaty regimes, where he had in mind the African and Western Hemisphere Conventions, and more determined steps to translate the conservation requirements of a regime, as expressed in legal language, into a system of practical controls, where he faulted the history to date of CCAMLR. He also thought a much better job could be done by the Convention on the Conservation of European Wildlife and Natural Habitats (the Bern Convention) to prohibit the ongoing degradation of breeding and resting sites it has listed as needing protection. International Wildlife Law, supra note 1, at 303–304.

Id. at 304.

Stacy VanDeveer & Geoff Dabelko, It's Capacity Stupid: International Assistance and National Implementation, 1 Global Envtl. Pol. 18–29 (2001).

See, for example, Hersch Lauterpacht, The Function of Law in the International Community (1933).

See, for example, the theoretical framework for and the case studies developed in, as well as the literature cited by, the contributors to NGO Diplomacy: The Influence of Nongovernmental Organizations in International Environmental Negotiations (Michele Betsill & Elisabeth Corell, eds. 2008).

The sources of this debate are traced in Francis Boyle, World Politics and International Law (1985), at 3–14.

But exactly how is this pressure exerted and what methods lie behind its self-evident success? The best short answer I know to this question is in Hunter, Salzman & Zaelke, supra note 3, at 255–271 and 438–452.

Lyster's International Wildlife Law, supra note 2, at 719.

Part I of the book includes four chapters on the foundations of international wildlife law. This is followed by a second part on species regulation, where the chapters deal with international agreements relevant to the future of fish, cetaceans, and birds in order. Part III addresses regional regulation of wildlife in the Western Hemisphere, Africa, Europe, Polar regions, and some other parts of the world. Then, in Part IV, come Lyster's “big four” (the Ramsar Convention, the World Heritage Convention, CITES, and the Bonn Convention, or CMS). To this point, the structure of the new book hews closely to that of Lyster's original. Part V introduces new material on the fresh perspective on wildlife regulation provided by a focus on biodiversity conservation, and embraces the CBD, its biosafety protocol, and a chapter on deserts, forests, and mountains. Part VI turns to cross-cutting or cross-sectoral issues arising from agreements on trade (GATT/WTO and the SPS and TBT agreements), animal welfare, and, finally, various forms of pollution. It seems to me that here climate change gets rather short shrift. The last Part of the book offers some final reflections.

Id. at 722–723.

Id. at 722.

Id. at 723.

The sources many observers rely on from IISD are the weekly Linkages Update, summarizing news, information, and analysis about international environment and sustainable development negotiations and policy making, and Biodiversity Update, a compilation at least once a week and sometimes more often of news and information items recently posted to the IISD Biodiversity Policy & Practice knowledge base of international activities on biodiversity. The former always contains a section on biodiversity and wildlife and a list of key meetings over the following two weeks. The latter deals only with biodiversity and wildlife matters, for example, at http://www.iisd.ca/linkages-update/182/ and http://biodiversity-l.iisd.org/biodiversity-update/2012-01-25 (both visited on 25 January 2012).

Fresh and promising proposals for new legal and policy initiatives that stand to benefit species and habitats do not come equally from the 190 or so States in the world. One must be careful of making invidious distinctions, here. It is fair to say, however, that over recent decades the United States, the European Union, Canada, South Africa, Australia, and New Zealand have, for one reason or another and in some policy areas more than another in each case, shown exceptional leadership.

This argument is a major focus of analyses dealing with World War II in Europe after the Normandy landings and the break out across the Seine towards the Rhine, and it contrasts the military leadership of the British, represented by General Bernard Montgomery, with that of the Americans, represented chiefly by General Dwight Eisenhower but also by Generals Omar Bradley and George Patton. See Robin Neillands, The Battle for the Rhine (2005).

Lyster's International Wildlife Law, supra note 2, at 722.

Id.

The new book argues, for example, that the impacts of climate change for wildlife, as well as for humans, are potentially “catastrophic.” Id. at 701. The Climate Change Convention and its protocols merit, however, only slightly more than five pages of analysis. Id. at 701–706.

The law of the sea is treated briefly in the chapter on fish. Id. at 121–149. The Convention on Biological Diversity gets more detailed treatment, id. at 587–629, and this includes the observation that the “effective conservation of high-seas biodiversity will require resolution of the relationship between the CBD and the LOSC (Law of the Sea Convention).” Id. at 628. It is hard to understand, however, why this resolution might require the negotiation of yet another legal instrument, and one wishes that this could have been explained.

At the back of his book, Lyster reproduced the text of 12 treaties. At the time, they were not otherwise readily available. This accounts for 160 pages in a book with a total length of 470 pages. As a sign of the times, and perhaps to remind us how lucky we are now, the new book notes that “the ready contemporary availability of treaty texts via the Internet has enabled us to replace the documentary Appendix with additional substantive sections.” Lyster's International Wildlife Law, supra note 2, at xv–xvi.

Id. at 720.

“[E]xperience suggests that even individuals who are relatively well informed about conservation goals, and support them in principle, often seem unable or unwilling actually to modify their behavior in order to align it more effectively with such aspirations.” Id. at 722.

This “transfer of expertise and resources from the developed to the developing world” would need to be accompanied, however, by more attention to “the practical productivity of such transfers.” Id., citing Valerie Kapos et al., Outcomes, Not Implementation, Predict Conservation Success, 43 Oryx 336–342 (2009) and Sarah Milne & Eduard Niesten, Direct Payments for Biodiversity Conservation in Developing Countries, 43 Oryx 530–541 (2009).

“[T]he recent formulations of principle by the International Law Commission in relation to both state responsibility and to civil liability offer new opportunities for overcoming these problems, but it remains unclear to what extent these will be embraced either by governments … or by the various adjudicative tribunals to which they have entrusted the task of resolving environmental disputes. Perhaps the International Court of Justice will grasp this particular nettle.” Lyster's International Wildlife Law, supra note 2, at 723. The Court's track record over the years at grasping nettles is not, of course, comforting.

When Lyster wrote his book, the professionalization of international wildlife law and policy, and the employment in the public sector and civil society of very large numbers of people, many with advanced degrees, working hard, every day, on wildlife issues had just started to get off the ground. The presence of these cadres, now, in international affairs goes unexamined in the new book, but it is surely one of the most remarkable and hopeful developments of the last 30 years.

Id. at xv.

Goble & Freyfogle, supra note 3, at 1325–1349.

Id. at 1350–1377.

Id. at 1377–1391.

Id. at 1391–1428.

Although I will not attempt to make the argument, here, much the same might be said about the great age of environmental statute writing in the United States. The last arguably major domestic law pertaining to wildlife enacted in the United States and listed by Goble and Freyfogle in their statutory appendix dates from 1999. Id. Appendix I, following p. 1428.

For a very long time, conservationists have praised the idea of designating protected areas of one sort or another under the terms of international legal instruments. The Ramsar Convention uses this strategy to list wetlands of international importance, for example, and it is used by other global instruments, such as the Heritage Convention, and at a somewhat smaller scale by the European Union's Birds and Habitats Directives to create the Natura 2000 network of protected areas. Discussions of these instruments almost always seem to focus on the value of achieving habitat designations, with the general rule of thumb being the more the better. There has been far less attention paid to what protection these designations actually accomplish, particularly when they have to come up against competing policy considerations. To get the answer to these questions it is, of course, necessary to get down into the nooks and crannies of national implementing institutions and do what we might call interstitial research, to set protective laws in context. There is not much of this sort of work, and we need more. There are interesting glimpses of what it might look like in Susan Elworthy & Jane Holder, Environmental Protection: Text and Materials, Ch. 11, Room for the Geese: Conservation and Designation, 422–462 (1997), and in Gabriela Kütting, Nature Conservation Law in Context: The Limited Influence of European Union and Greek Designations on the Future of Cavo Sidero, Crete, 14 J. Int’l Wildlife L. & Pol’y (forthcoming 2012).

Emeritus Professor of Political Science, University of California, Davis, CA 95616, USA. [email protected]