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Law and Biodiversity
ADB Review [ August 2005 ]
Protecting biodiversity requires clear legal frameworks. Effectiveness must be the touchstone for establishing, or redesigning, an integrated legal framework
By Kala Mulqueeny, (firstname.lastname@example.org)
Biodiversity preservation is key to achieving many of the Millennium Development Goals (MDGs) as the lives and livelihoods of millions of people rely on biodiversity and intact ecosystems for critical services. Significantly reducing biodiversity loss by 2010 was proclaimed by the international community as a common objective at the 2002 World Summit on Sustainable Development.
Asia and the Pacific—storehouse of much of the richest and most varied of the world’s biodiversity—must directly confront this challenge, and fast!
Many core threats to biodiversity in Asia and the Pacific stem from illegality. Illegal logging plunders tropical rain forests. Poaching wildlife for consumer markets or traditional medicine expands the risks to many already endangered species. Dynamite blasting obliterates coral reefs. Cyanide is used to poison swaths of reef fish. Pollution and unsustainable harvesting of forests and ocean fisheries compound all these illegal threats. Trade of illegal products across national borders expands the scope of these threats to regional and international levels.
Further, increasing efforts to accelerate Asian and Pacific economic integration and the development of transregional infrastructure facilities will hasten economic growth. But the exploitation of natural resources and development of infrastructure upon which economic growth is based can destroy ecosystems and biodiversity unless steered toward sustainability.
Reducing biodiversity loss is complex. Threats to biodiversity and ecosystems are multicausal. Ecosystem services and many benefits of biodiversity are forms of public goods. These are goods that can be shared by many, but not owned or exchanged, so the market assumes they are free. Access to such “public goods” or “common” resources like ecosystems cannot always be restricted or managed by governments. Neither can governments always assign biodiversity or ecosystems to individuals as private property. Private landowners may not see incentives in maintaining biodiversity.
To confront such challenges, institutions and legal frameworks must span sectors and be integrated at the international, regional, national and community levels. “Effectiveness” must be the touchstone for establishing, or redesigning, an integrated framework to ensure implementation, compliance, and enforcement of biodiversity-related law in each Asian and Pacific country. Targeting illegalityrelated biodiversity loss must form a key component.
International and Regional Cooperation
The 1992 Convention on Biodiversity (CBD), ratified by most of the Asian Development Bank (ADB)’s members, forms the core for international cooperation in this area. International conventions and soft law (norms that have moral but not legal force) exist on international trade in endangered species, wetlands, world heritage, migratory wildlife, forests, timber products, deserts, and the oceans. International law has, however, been criticized for ineffectiveness. Even where Asian and Pacific countries fulfill their international commitments, ever more species in the region are moving closer to extinction.
Asian and Pacific countries have no regional agreement for biodiversity or ecosystem preservation currently in force. Institutions and legal frameworks need to be established to preserve ecosystems. They need to be as robust as the regional institutions and rules currently being developed to hasten economic integration. Asian and Pacific countries will also need to cooperate to jointly manage transboundary rain forest, ocean, coastal, freshwater, and mountain ecosystems; track, detect, and stop illegal trade and transport of wildlife, timber, sand, and reef fish; and take demand-side control measures for markets in illegal timber, wildlife, and fish.
International and regional cooperation will thus need to be driven by states—but will need to filter down to strengthened cooperation among working-level government officials, such as forest and customs officers, law enforcers, and the military. Cooperation must also involve civil society representatives who focus on law and enforcement such as academics and legal nongovernment organizations (NGOs), prosecutors, as well as judges and lawmakers.
ADB has a role to play in assisting members to generate and maintain international and regional public goods such as preserving ecosystems and biodiversity. ADB is breaking new ground by providing technical assistance program to help establish and implement an Asian and Pacific environmental enforcement network in collaboration with NGOs and other development partners. The Regional Environmental Compliance and Enforcement Network could be extended to biodiversity and forestrelated issues.
At the country level, legal frameworks must be driven by what works in their context. Merely replicating international norms or developed world legal frameworks is unlikely to work. Innovative thinking is needed during legal framework design (or redesign), implementation, and enforcement. Legal frameworks must integrate planning, land use, forestry, wildlife, marine resources, mining, pollution control, environmental impact assessment, and protected areas laws.
Customary law also needs to be considered, as national legal systems may not always reflect the social and customary laws that guide indigenous peoples’ and local communities’ behavior. Social mores also require thought, as they may be an additional effective way to achieve legal compliance. For example, primetime television advertisements were used in Indonesia to show the health risks of keeping orangutans as pets. Such ads have proven more successful in inducing the voluntary surrender of illegally held orangutans than widespread public notice of the legal prohibition. Similarly, public awareness and skills based training for enforcement officials and civil society is needed. Demandside control of the market for illegal timber, wildlife, and tropical aquarium fish—through regulations or awareness campaigns in timber and wildlife-consuming countries—also has potential.
Enforcement of biodiversity-related laws must be a focus as it is often a major weakness. Too often calls are made for increased enforcement without systematic analysis of the elements preventing greater levels of effective enforcement. For example, the best response to cyanide poisoning of reef fish by poor fishermen may be to provide alternative livelihoods. In contrast, commercial illegal logging by public officials, police, and military members will require deliberate systemic focus on corruption and the law enforcement and justice system. Corruption, collusion, and fear of retribution play a role in preventing such public officials being brought to justice. Weak laws, lack of evidence, or out-of-date rules of evidence are also constraints in achieving convictions against illegal loggers.
Similarly, in partaking in the illegal wildlife and tropical aquarium fish trade, public officials abuse their office. Such governance problems extend beyond contributing to biodiversity loss. They are symptoms of wider governance breakdowns and a weak rule of law.
Thus, focusing on preventing illegalities as a strategy to prevent biodiversity loss involves focusing on governance and the law enforcement architecture. For example, how potential lawbreakers may be deterred; why lawbreakers break the law; how lawbreakers are identified, apprehended, prosecuted, convicted, and punished; and how obstacles at each of these stages may hinder law enforcement.
Forest and coastal law enforcers, police, prosecutors, and judges (and even law students!) must be targeted for specific training and capacity building to address biodiversity loss. ADB has produced a twovolume reference book, Capacity Building for Environmental Law in the Asian and Pacific Region, to facilitate such training and has conducted a regional training program in conjunction with partner institutions.
ut these steps need to be complemented by wider programs directed toward addressing corruption and strengthening the law enforcement and justice systems. Such programs should seek to establish a responsive and accountable system of public governance and recognition of the rule of law. Given the pervasiveness of illegality as a core threat to biodiversity, preventing illegality-related biodiversity loss can only be possible in the shadow of an effective system of governance supported by the rule of law.