The role of facilitative approaches in promoting compliance

Standard environmental texts tend to address the issue of compliance exclusively as a question of enforcing or ensuring compliance with treaty obligations through formal and informal methods for settling disputes and monitoring compliance. With a number of environmental treaties now including a compliance procedure, the increased attention on the role of international compliance in the effective implementation and enforcement of international environmental treaties is unsurprising. As the burgeoning literature underscores, the primary objective in establishing compliance procedures is to provide, within a multilateral context, encouragement to states to comply with their treaty obligations and, in the event of non-compliance, to provide a ‘softer’ system to address non-compliance than that afforded by traditional dispute settlement procedures under general international law. In the climate change context these ‘traditional procedures’ comprise the multilateral consultative process and dispute settlement provisions of the UN Framework Convention on Climate Change (FCCC), which are extended to the Kyoto Protocol (KP) with its additional, bespoke compliance procedures. Facilitating compliance is clearly a part of this process, as the mandate of the KP’s bifurcated compliance body underscores: ‘[t]he objective of the procedures and mechanisms on compliance is to facilitate, promote and enforce compliance with commitments under the Protocol’. Practice under the first-ever compliance mechanism, established under the Montreal Protocol, reveals a particular reliance on facilitative approaches even though the Implementation Committee thereunder is not bifurcated in the manner of the Kyoto Compliance Committee.

In the climate change context, as elsewhere, there has been a tendency to equate compliance facilitation with formal (non-) compliance procedures. For example, in their guide to the climate change regime, Yamin and Depledge explain ‘provisions in the climate regime that facilitate compliance by Parties with their international commitments and, where necessary, correct cases of non-compliance’ exclusively by reference to the dispute settlement, multilateral consultative, and compliance procedures and mechanisms of the FCCC and KP. Matters such as finance, technology, and capacity building are addressed elsewhere as resources relevant for achieving the substantive commitments set out in the FCCC and KP.

Introduction

Both the Arctic and Antarctic polar regions are subject to regional rules for, inter alia, the protection of species and of habitat. While special rules exist for other regions, as for example explored in the other chapters in Part III of this book, the polar regions are different by virtue of ‘their size compared to other regions, the unique problems they face, the interest of the whole international community in their management and resource potential, and the means that have been adopted to deal with management problems’. Additionally, while other areas may be more severely affected by climate change, its impact on polar bear habitat, and the consequences for sea-level rise of the melting of ‘permanent’ Antarctic ice shelves, have had catalytic effect upon perceptions of this global problem. The polar regions are considered key to our general understanding of climate change. In 2009, the first ever (largely symbolic) Joint Ministerial Meeting of the Antarctic Treaty/Arctic Council took place in Washington on 6 April 2009 on the occasion of the conclusion of the fourth International Polar Year (2007–8) and the fiftieth anniversary of the Antarctic Treaty.

Yet there are also significant differences between them. Geographically, the Arctic comprises an ocean surrounded by continental land masses, while the Antarctic is a continent surrounded by ocean. Arctic peoples have inhabited the northern polar region for thousands of years, while Antarctica has no permanent population save for scientists.

Background

In December 1938 the Eighth International Conference of American States met in Lima and recommended that the Pan American Union establish a committee of experts to study problems relating to nature and wildlife in the American republics and prepare a draft convention for their protection. Pursuant to this recommendation, the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (the Western Hemisphere Convention) was concluded and opened for signature to member states of the Pan American Union (now the Organization of American States, and hereinafter referred to as the OAS) on 12 October 1940. It entered into force on 30 April 1942. It has been signed by twenty-two member states of the OAS and ratified by nineteen of them, the last ratification being that by Suriname in 1985.

The Western Hemisphere Convention was a visionary instrument, well ahead of its time in terms of the concepts it espouses. The protection of species from human-induced extinction, the establishment of protected areas, the regulation of international trade in wildlife, special measures for migratory birds and stressing the need for co-operation in scientific research and other fields are all elements of wildlife conservation which are covered by the Convention – many of them for the first time by an international treaty – and which have reappeared time and again in other conventions concluded since 1940.

Introduction

It was hoped that the Rio process would bring about not only a convention conserving biodiversity but also conventions on desertification and forests. From 1975 onwards, the UN, UNEP, and various conferences of concerned international organisations and bodies had drawn attention to the increasingly serious environmental and economic consequences of the expansion of arid lands and destruction of forests, especially tropical forests. Various recommendations emerged from these and were promoted by, inter alia, UNEP, UNESCO, and the FAO, but action lagged until the spread and severity of desertification and rate of destruction of forests led to intensified demands for action. This was inhibited, however, by the insistence of some states that the issues involved fell wholly within their national sovereignty. Thus, although some progress was made on definitional aspects, the goal of concluding conventions on these topics was not attained at UNCED, though Agenda 21 did define and draw attention to desertification, and a non-binding statement of principles relating to forests was adopted. It was not until 1994 that a Convention to Combat Desertification was adopted; to date, no global agreement on binding standards for the protection of forests has been reached.

Agenda 21 also called for regional legal and other instruments to protect fragile mountain ecosystems, with a step in this direction taken the previous year with the conclusion of the 1991 Alps Convention in Europe.

Background

Human recognition of the need to protect birds goes back many centuries, although the underlying motivations have changed significantly over time. Birds were originally valued as a food source, as controllers of insect pests and as sport hunting targets. More recently, emphasis has been placed on their aesthetic and ecological qualities and their importance as ‘indicator’ species which reflect the wellbeing of ecosystems as a whole. Since so many bird species habitually migrate across international boundaries, it is not surprising that international agreements have frequently been concluded to promote their conservation. Another key consideration is that ornithological organisations, which commonly boast a sizeable and articulate membership and command substantial resources and expertise, have played a particularly significant role in the development of international wildlife law.

Although various agreements have been concluded for the benefit of birds specifically, some of these are no longer of much practical importance, greater progress having often been achieved by treaties with a wider operational focus. This chapter begins by examining the instruments which have been adopted within the continent of Europe, followed by those concluded in other regions. It then briefly explains the significance in this context of certain more broadly based conservation agreements, detailed discussion of which can be found elsewhere in this work, before concluding with an analysis of the arrangements adopted specifically for the protection of birds within the framework of the Bonn Migratory Species Convention.

The analysis of international regulatory activity for the conservation, protection and management of nature and natural resources which has been presented above indicates that international wildlife law has come a very long way since its emergence in the latter stages of the nineteenth century. The intervening periods have witnessed an extraordinary proliferation of protective measures, frequently concluded in legally binding treaty form, and displaying ever greater indications of sophistication, adaptability and mutual coherence. In particular, this has been achieved through the incorporation of dedicated institutional arrangements which have sustained and enhanced the capacity of these treaties to clarify and advance their stated goals, and to work collaboratively to that end. The active participation of non-governmental actors – especially the scientific and technical communities and the various campaigning organisations and other representatives of civil society – has proved crucial in maximising the potential of these institutional arrangements. While the basic foundations for this elaborate edifice of twenty-first-century international wildlife law and institutions had already been laid by the publication of the original edition of this work in 1985, they have been both deepened and strengthened, and significantly built upon, in the interim. There is, accordingly, little serious risk of the modern generation of international conservation agreements ultimately sharing the fate suffered by so many of their forebears – namely gradual but inexorable consignment to that forlorn category of ‘sleeping treaties’, to utilise Simon Lyster's own evocative phrase.

Introduction

Over the past two decades the interrelationship between multilateral environmental agreements (MEAs) containing trade-related environmental measures (TREMs) and trade agreements has received considerable attention. The purpose of this chapter is not to revisit this wider, and well-documented, ‘trade and environment debate’, but rather to locate the international wildlife law and practice discussed here within it. That such treatment is pertinent is obvious given that some of the treaties considered in this volume directly employ TREMs as a regulatory tool. One of the earliest examples is the 1916 Convention for the Protection of Migratory Birds, which prohibited trade in such birds falling within its scope, or in their eggs, during the close season. Today international trade in wildlife is governed primarily by CITES, where the potential for conflict with trade law may arise in consequence of CITES listing. Reeve points out that in 1997 Zimbabwe apparently considered WTO challenge of Appendix I listing of the elephant, to compensate for loss of ivory markets. This course was not taken because CoP 10 downlisted Zimbabwe's elephant population to Appendix II, and permitted limited trade in stockpiled ivory.

Yet the direct nexus with trade does not stop here, as CITES also serves to illustrate. Trade – or, more accurately, suspending trade – may also be employed as a compliance tool. As of 2009 there were thirty-two trade suspensions in effect under CITES, for failure to provide the required annual report on illegal trade, for failure properly to implement CITES in domestic law and for significant trade in Appendix II species.

Background

The first international agreement to conserve African wildlife was signed in London on 19 May 1900 and was called the Convention for the Preservation of Wild Animals, Birds and Fish in Africa. It was signed by the colonial powers then governing much of Africa – France, Germany, Great Britain, Italy, Portugal and Spain – and its objective was ‘to prevent the uncontrolled massacre and to ensure the conservation of diverse wild animal species in their African possessions which are useful to man or inoffensive’. The teeming herds of African wild animals were already starting to diminish, and the primary goal of the Convention was to preserve a good supply of game for trophy hunters, ivory traders and skin dealers.

The 1900 Convention prohibited the killing of all specimens of species listed in Schedule 1 of the Convention and ‘any other animals whose protection, owing to their usefulness or to their rarity and threatened extermination, may be considered necessary by each Local Government’. Schedule 1 was divided into Series A (‘useful animals’) and Series B (‘animals that are rare and in danger of disappearance’). Series A contained the secretary bird and all vultures, owls and oxpeckers. Series B consisted of ‘giraffe, gorillas, chimpanzee, mountain zebra, wild asses, white tailed gnu, elands and pygmy hippopotamus’. The Convention also prohibited the killing of non-adults and females ‘when accompanied by their young’ of ‘elephant, rhinoceros, hippopotamus, zebra other than mountain zebra, buffalo, antelope and gazelles, ibex and mouse deer’.

Background

The need for international regulation of marine fisheries is self-evident given that many fish species spend some or all of their life cycle crossing national maritime zones and/or in areas beyond national jurisdiction. Traditionally, international law recognised freedom of fishing beyond the territorial sea, with legal title to the resource arising only on capture. This led Garrett Hardin in a seminal article in the 1960s to note the ‘tragedy of the commons’: in the absence of ownership and of international co-operation with respect to high-seas fish stocks in particular, the oceans had become a ‘free for all’. Sharks, rays, turtles and tuna are amongst the high-seas stocks which have suffered serious depredation, with several species now listed on CITES Appendices.

As with many other forms of wildlife regulation, the initial impetus for international regulation of fish stocks was conservation of commercially exploited species for economic benefit. Increasingly, however, the conservation of fish stocks as an ultimately exhaustible natural resource and of fish species as part of marine ecosystem management has emerged as an additional objective, and is found reflected in more recent instruments such as the sustainable-use obligations of the 1995 Agreement on Straddling and Highly Migratory Fish Stocks (SSA), considered further below.