Legal issues related to hunting are addressed in other parts, such as those on regulation of hunting (section 3.3.), on licences (section 3.4.) and on ownership of wildlife (chapter IV). This section is limited to aspects which are not addressed elsewhere.
Among the most common protection rules are those which set out prohibitions applicable to hunting. These prohibitions are of different types. Limitations in the quantity of animals which may be hunted (for example under a single licence, or within a certain period) are not common in the principal legislation, as they are more frequently placed in subsidiary legislation periodically adopted or incorporated as licence conditions.
Limitations on time are quite common. Most laws prohibit hunting between sunset and sunrise. The fixing of open and closed seasons is also common, although more frequently through subsidiary legislation. At the time of adoption of the current law on hunting in 1992, Italy chose to establish hunting seasons respectively for various species directly in the law, allowing the regions to modify them, subject to certain conditions (art. 18.2.).
As to limits on places, the issue is addressed in the chapter V on protected areas, where some examples are given of protected areas which have specific wildlife management purposes, and in chapter IV on ownership of wildlife, as some countries endow landowners with exclusive hunting rights, while others allow hunting by anybody more freely, even on private lands.
Regarding hunting methods and weapons, many prohibitions are common to most of the legislation which has been examined. This is the case, for example, regarding the use of drugs, poison, explosives, fire, as well as hunting from moving vehicles. Methods of hunting, however, are a typical part of local traditions and therefore additional prohibitions in this regard may vary greatly from one country to another.
In countries where hunting continues to contribute to subsistence, there are exemptions from prohibitions to hunt to allow traditional hunting practices. The Bonn Convention on the Conservation of Migratory Species of Wild Animals of 1979 already allowed exceptions to its regime for purposes which included the needs of traditional subsistence users of protected species (art. 3).
In traditional African societies, prohibitions to hunt were usually not necessary, as hunting was often part of customary management systems which by their nature could rarely produce negative impacts on the conservation of wildlife.[24] Progressive settlement into stable areas brought about the suppression of rotation of hunting areas, but also changes of habitats, increase of agriculture, and subsequently the market economy. This implied also an incentive to destroy "noxious" animals, and generally a loss of respect for game. These various factors, and the tendency to establishing State ownership of land and wildlife resources, have caused the disappearance of traditional regimes of wildlife management and hunting, and have brought about the establishment of legislation setting out a number of hunting prohibitions. Exemptions from such prohibitions to allow traditional hunting practices are currently often limited to specified species (usually small game) and to the areas in which hunters live, excluding commercial purposes.[25]
For example, the 1997 law of Burkina Faso expressly allows subsistence or traditional hunting by local communities to the extent that it is done to ensure their subsistence (art. 115). In Cameroon, traditional hunting (defined as hunting by means of "vegetable" origin) is "free" on any land except within private properties, although within protected areas it may be subject to specific regulation. Animals obtained from traditional hunting may not be used for commercial purposes (art. 24).
The issue of whether and to what extent particular methods of hunting should be authorized because they are "traditional", although more destructive than most current practices, is also among those widely debated in European countries. For example, in adopting the current legislation in 1992, Italy chose to specify permitted hunting methods, thus phasing out other methods until then traditionally practised, usually within particular areas, to the dissatisfaction of concerned sport hunters. Many still argue that some of the traditional methods would not be in conflict with conservation, and that an assessment of their actual impact on concerned species should be carried out on a case by case basis. The debate is still open and a bill is again under consideration to abolish some current prohibitions.
Legislation setting out protection rules may limit its scope to more valuable or rare species, or extend to apparently less interesting species, or wildlife or biodiversity as a whole. The legal mechanism for protecting specific species is often to provide for a classification of animals which are to receive varying degrees of protection and therefore for the creation of lists. This approach is quite common and in some places remains the principal protection tool. Often, however, it is combined with the statement of broader conservation principles.
For example, in the 1997 law of Guinea there is a requirement to ensure conservation of fauna through a favourable environment and sustainable management (art. 4). There is also an obligation to maintain or re-establish sufficiently diverse habitats for this purpose (art. 5), and a specification that rational management implies maintenance of satisfactory population levels. Lists of totally protected and partly protected species are to be set out by the decrees implementing the principal law (arts. 47 and 56). The law of Burkina also envisages a system under which by decree of the Council of Ministers species may be included either into a list "A" of wholly protected species or into a list "B" of partly protected species. Species not included in the lists are in any case partly protected, as they benefit from general measures to safeguard wildlife (arts. 103-111).
In China, the 1988 law expressly aims at the protection of wildlife species which are rare or near extinction, although there is also a general rule to "maintain ecological balances" (art. 1). Other provisions extend protection to species which are beneficial or of important scientific or economic value. There is also provision for the listing of species into two classes, to be proposed by the wildlife administration and approved by the State council. Lists of wildlife under special local protection may also be adopted by provinces, autonomous regions or municipalities (art. 9). In Tajikistan, the law of 1994 requires scientific-based, rational use of wildlife, as well as the preservation of biodiversity (art. 1). Animals under threat of extinction or that are rare are to be listed in a "Red Book" (art. 47).
The 1996 law of Chile establishes a number of categories of wildlife species, which are to be listed by regulations (art. 3). The transfer of a species into a category of which hunting is allowed requires a population study showing that there will not be negative consequences for that species’ conservation (art. 27). In Uruguay, a general prohibition to hunt is established, and exception is made for species listed in a decree (Decree 164/996, art. 10). Additional species may be taken subject to further restrictions, as specified in another decree (Decree 165/996). The legislation of Spain (1988, 1997) provides for a national register of endangered species in which fauna to be protected is to be listed in specified categories (arts. 29 and 30).
In some countries the lists of protected species are set out in the principal legislation itself. Examples of this approach may be found in Benin (laws of 1987 and 1993), Mauritania (law of 1997) and Cameroon (law of 1994). In the latter case, the 1995 decree of implementation requires (art. 14) that the classification set out in the law (art. 78) be updated at least every five years. Botswana’s 1992 Act lists "protected game animals" and "partially protected game animals" in a schedule (secs. 17 and 18). The general rule is that no animal may be hunted, with the exception of non-designated invertebrates outside national parks and for home consumption (sec. 19). Some laws specify which species of wildlife may (or may not) be hunted, as is in Belgium (1997 law on hunting, article 1 bis, and 1991 decree on hunting of the Flemish region, art. 3) and in Italy (article 2 of the 1992 law), or make provision for their listing, as is done in Albania (article 32 of the 1994 law).
In other cases the laws allow more flexibility in the determination of species which require particular protection, stating general principles of conservation and simply allowing for the declaration of protected species, rather than requiring it. This is the case in Malawi (section 43 of the 1992 Act) and Uganda (section 28 of the 1996 Act). Among the purposes expressly stated in the law of Malawi is the conservation of wildlife so that the abundance and diversity of species are maintained at optimum levels, in order to support sustainable utilization (sec. 3(1)).
The general tendency to concentrate protection to more valuable, visible species often implies that species other than mammals receive little or no protection. In the United Kingdom, as regards insects, fish, amphibians and reptiles, there tends to be protection only for endangered or threatened species, with few exceptions for some common reptiles.[26] In contrast to this tendency, the 1997 law of Lithuania defines wildlife as including both vertebrate and invertebrate species (art. 1). Some regions of Italy, such as Emilia Romagna, have adopted specific laws for the protection of "lesser fauna".
It is difficult to tell from an analysis of the legislation alone whether the various examples of provisions which have been reported effectively guarantee the protection of wild animals. There are certainly some risks of ineffectiveness wherever any law has the effect of concentrating protection exclusively on some species, as obviously species should not be considered in isolation from interrelating species and their habitats. Legislation which sets out lists of protected species directly in the principal act particularly risks being ineffective, as the lists may be more difficult to amend than in other cases. Although broad protection principles are usually not missing in laws which set out lists of protected species, the fact that such significant management decisions as the listing of protected species are already made in the law deprives subsequent wildlife management planning of much of its significance. The same could be said about laws which set out open and closed seasons for hunting. Although being subject to the law, management activities should be progressively adapted to needs which may have to be met to ensure sustainability.
The effectiveness of these rules also depends on the extent to which exceptions are allowed by the law and in practice - whether exemptions are foreseen at the discretion of the administration or for specific purposes (such as scientific research) but without adequate means to prevent abuses. These means could include not only adequate sanctions, but also more appropriate formulation of the laws with a view to preventing violations and abuses. For example, prohibitions could be strengthened by forbidding to possess (rather than only to take) specimens or parts of prohibited species etc. An appropriate definition of hunting, which includes wandering with firearms (as in the laws of Guinea, art. 2, and Mauritania, art. 7) may also help enforcement.
Reflecting recent developments in international law, a number of domestic laws have started to require the assessment and mitigation of any processes which may be potentially harmful on wildlife, rather than limiting their scope strictly to protection and management. Malawi, for example, requires "wildlife impact assessments" for any "process or activity" which may have an adverse effect on wildlife. Although only the Minister may undertake the assessment, any person who has reason to believe that such an adverse effect will be produced may make a request to undertake it. The process leads to the submission of a report with recommendations on subsequent government action (secs. 23-25). In Uganda, persons wishing to undertake projects which may have a significant effect on any wildlife species or community must undertake an environmental impact assessment (sec. 16). China requires the monitoring of environmental impacts on wildlife and where harm to wildlife may be derived from any activities, the matter must be addressed jointly by the wildlife administration and the other concerned administrations (art. 11).
The 1999 law of Australia requires listing of key threatening processes. The Minister must ensure that a "recovery plan" is in force for each listed threatened species and ecological community, and that a "threat abatement plan" is adopted for key threatening processes where appropriate (sec. 183). Lithuania’s law of 1997 requires that in planning and implementing any economic activity, measures must be taken to mitigate impacts on habitats, breeding conditions and migration routes of wildlife (art. 6). Any development which may have a significant effect on wildlife species or communities is subject to environmental impact assessment (art. 16).
Some countries specifically require environmental impact assessments of actions which may affect protected areas. Cameroon (article 21 of the 1995 decree) and Guinea (art. 40) provide some examples. The EC Habitats Directive requires a specific evaluation of the implications of relevant activities on sites slated for protection under the same Directive. This assessment must be made specifically in view of the site’s conservation objectives and therefore this process differs from the general environmental impact assessment process, as regulated in separate legislation.[27]
The EC and Switzerland have also supported non-intensive agricultural practices, with a view to mitigating impact on the environment and wildlife, by providing specific subsidies. Practices which, by reducing impact by agriculture on soil and insects benefit wildlife conservation, are actively pursued in the United Kingdom.[28]
The protection and management of biodiversity have started to be addressed in numerous legal systems, either by incorporating relevant objectives in environmental or wildlife management legislation or by adopting separate specific legislation.
Costa Rica is among the countries which adopted a specific law in 1998. The law sets out general principles (art. 9) and provides for the creation of a national commission to be responsible mainly for policy making and co-ordination among agencies (arts. 14-21). It also provides for the creation of a national system of conservation areas with the related administrative structure (arts. 22-43). Access to genetic and biochemical components of in situ and ex situ biodiversity is regulated, with a view, among other objectives, to safeguarding the rights of local communities to be adequately informed and, if they wish, object to the operations (arts. 62-76).
In its recent law on environment and biodiversity, Australia encourages the identification and monitoring of biodiversity, for the purpose of identifying and monitoring components that are important for its conservation and sustainable use, or that are inadequately understood, or of collecting other useful information, providing financial and other assistance for this purpose (sec. 171).
The law particularly focuses on planning, setting out various types of plans which must or may be adopted. "Bioregional plans" which may be prepared include provisions on the components and the status of biodiversity, important economic and social values, as well as objectives relating to biodiversity and other values, and set out priorities to be achieved. The responsible minister must have regard to these plans in making any decision to which they are relevant (sec. 176). "Recovery plans" must be adopted for listed threatened species and "threat abatement plans" may be adopted for listed key threatening processes (sec. 183). "Wildlife conservation plans" may be adopted for listed migratory species, listed marine species, cetaceans that occur in the Australian Whale Sanctuary and conservation dependent species (sec. 285).
There are also many examples of countries which have incorporated obligations to protect biodiversity into legislation on environmental protection, or wildlife, or protected areas, including Cameroon, Spain and Ireland.
One problem which should be prevented in the adoption of legislation on biodiversity is the possible overlap and conflict with sectoral legislation on individual natural resources, which are themselves elements of biodiversity. As far as plans and authorizations relating to natural resources, including fauna, are concerned, the law of Costa Rica appropriately requires that any central or local institution issuing them must take into account the conservation of biodiversity (art. 52). As to the specific provisions on access to genetic resources, however, some overlap seems to be inevitable.
Most recent wildlife laws devote some provisions to management planning, spelling out the basic dynamics of the management process and addressing protection as well as sustainable exploitation. They often require the surveying of animal populations and habitats and the formal adoption of management plans. The following are some examples.
The Spanish law includes basic principles for the management of natural resources and biodiversity. It requires competent administrations to formulate natural resource management plans, with specified contents, and which are to prevail over any other planning instruments which may apply over the same areas (arts. 4 and 5). Hunting is subject to a "technical plan" aiming at the protection of game, to be adopted in accordance with regional legislation (art. 33).
In Portugal, the Framework Law on Hunting requires the adoption of hunting management plans for areas which may be considered as a biological unit for determined game populations and in the case of significant passage of migratory species (art. 13). It also requires that the hunting seasons be fixed based on the breeding periods of each species (art. 8).
Cameroon’s decree of 1995 envisages the possible preparation of management plans for the sustainable utilization of one or more wildlife resources (art. 2(3)). It also envisages hunting plans which more specifically set out allowed hunting quotas and other conditions for hunting (art. 2(4)). Pursuant to the law of Guinea, species whose state allows it may be hunted in accordance with management rules which ensure the development or the maintenance of existing populations (art. 42).
In Albania, the law provides for the preparation of wildlife management plans, based on scientific criteria, on which the yearly hunting plan should be based (art. 13). In Lithuania, a national wildlife "cadastre" with relevant information on species, conditions, utilization etc., must be kept in order to ensure the rational use of wildlife (art. 25). In Tajikistan, the law requires that action be based on monitoring and available data, some of which are to be supplied by "users of objects of the animal world", as users have, among others, an obligation to register number and conditions of specimens taken or utilized (art. 38).
In Malawi, the Minister must ensure that measures taken under the law be based on the results of scientific investigation, including the monitoring of the conditions of species and habitats (sec. 3(2)). The grant of any right to use wildlife is subject to the applicable management plans (sec. 33.3(c)). The law of China generally requires surveys of the state of wildlife (art. 15), as well as monitoring of any environmental impacts on wildlife. There is also a requirement in the regulations to determine species which may be hunted based on the current situation of non-protected species and subject to the principle of sustainable utilization (reg. 16).
In France, pursuant to a law of 1993, a "national inventory of the biological heritage", along with inventories at the local level, are kept (art. 23). The provisions of the rural code concerning hunting require the adoption of a schéma départemental de gestion cynégétique, with the cooperation of owners, managers and users. The scheme is to include hunting and management plans, maximum number of animals allowed to be hunted, action to be taken with respect to predators, habitat conservation etc. (art. L-221). For some species, plans are to be adopted at the national level (art. L-225).
In Italy, the National Wildlife Institute, a body established by law with research, training and advisory functions to the State and the local authorities, is in charge of surveying the state of wild fauna and its evolution and relations with other environmental components (article 7 of the 1992 law). All agro-sylvo-pastoral lands are subject to wildlife/hunting management planning, to be carried out by local authorities. Planning, however, is not expressly required to be linked to the results of the surveys. Furthermore, the law already establishes dates within which hunting of listed species may be practised every year, so little space seems to be left to planning in this regard. Modifications of such dates by the regions are allowed, however, in light of particular local requirements, subject to a positive opinion of the National Wildlife Institute and the prior adoption of adequate management plans (article 18(1) and (2) of the same law).
This analysis shows that, in comparison with older laws which limit wildlife management provisions to basic prohibitions applicable to hunting, which were typical of previous years, considerable progress has been made. The laws referred to in these examples may act as significant management instruments, as they tend to guide administrations to adopt relevant decisions in a rational and transparent manner. However, sometimes the laws include the relevant requirements only in a fragmentary manner rather than in a logical sequence. The process would have to move from an assessment of the state of the resources, followed by the adoption of plans based on up-to-date findings and by management subject to the plans’ contents, but these simple steps are not always all clearly set out in the legislation. Another weakness is that some countries limit management planning requirements to hunting purposes and animals which may be hunted rather than extending to an overall wildlife management perspective.
Hunting plays an important economic and social role in many countries, where it may be a significant source of food and revenue. Even where this is not the case, it often remains a popular sport. In many European countries in which hunting is supported by powerful interest groups, wildlife management and therefore the adoption of relevant legislation tends to be the subject of a lively political debate. Often the issues at stake simply come down to the question of whether hunting should be allowed or not, whether generally or, more often, with respect to certain species or in particular areas or at certain times of the year. This has in practice tended to limit wildlife management to the dichotomy between hunting and non-hunting.
Although this is an inadequate approach, it is still reflected in some of these countries' legislation, which in spite of formally addressing general wildlife protection, continues to concentrate mainly on species which are of interest for hunting. An example of this approach is the law of Italy, which formally addresses the protection of wild animals and hunting, but focuses on the latter and in any case is expressly limited to warm-blooded animals. However, a comprehensive law on wildlife management in under consideration.
Other European countries, among which are some of the Austrian Länder, Denmark, Finland and Germany, have distinct laws in place respectively on the protection of nature and on hunting. In these cases, ideally the general provisions on wildlife protection and management usually included in the former should be adequately integrated with the provisions on hunting. In some cases, however, the two pieces of legislation seem to act in isolation from each other, i.e. the one on wildlife protection operates under an express exclusion of species which may be hunted.
There have been, however, improvements of legal frameworks in this respect in recent years. [29] It is interesting to note, for example, that in the Austrian Land of Styria the Law on the Protection of Nature, until an amendment of 2000, still conceived animal protection as separate from game management, establishing that wild animals which were under the threat of extinction or otherwise required protection should be protected, but expressly excluded game animals (art. 13).
In any case, wildlife management regulation remains subject to pressures by at least three traditional lobbies, i.e. those of hunters, farmers and environmentalists. Among the subjects of debate are various practices usually supported by hunters (whose interests may sometimes coincide with those of farmers as regards hunting of species which are noxious for crops), and sometimes allowed by the legislation. One example is the debate over traditional hunting methods and the extent to which they should be authorized in sport hunting (see section 3.1.1. above).
Other examples are the management of wildlife with a view to producing the best trophies, e.g. by establishing trophy-oriented hunting seasons, or game feeding, which causes the impairment of habitats by introducing nutrients, nibbling of forest regeneration, etc. (Späth, 2000).
Another example is the practice of re-stocking of wildlife for hunting purposes, which tends to be allowed fairly frequently, while increase in wildlife populations should rather be obtained through a general improvement of wildlife and environmental management.
One last example is that of selective hunting (or culling) of particular species, even in protected areas, which could be justified in particular situations, but only as an exceptional option, to be kept under strict scientific control. In Italy, selective hunting may be authorized in protected areas - where hunting is generally prohibited - by authorized hunters, preferably local hunters, who must have followed a specific training course. The latter requirement, established by a 1998 amendment of the Framework Law on Protected Areas, helps to ensure that capable persons are involved; but as precise scientific criteria are missing, the issue remains subject to heavy political pressure.
Licences or other kinds of permits are a typical administrative instrument for the management of natural resources and are utilized also in relation to wild animals, to authorize hunting or other kinds of uses. Licences can contribute to management where they are effectively used to limit the number of animals which may be taken under a single licence, based on a periodical assessment of sustainable levels of exploitation and adequate plans. Provisions which clearly relate the number of animals allowed to be taken under licences to surveys or management plans, however, are rare, while ample discretion tends to be left to the administration in this regard. One example in which the administration’s discretion is to be guided by "the interests of wildlife management" is the law of Malawi, which allows the Chief Parks and Wildlife Officer to refuse a licence if he/she is satisfied that such interests "will be better served by a temporary freeze in issuing licences of that class" (sec. 54 (1)(e)).
Although not necessarily in co-ordination with the evolution of the state of wildlife, limits to the number of animals which may be hunted frequently exist. The law of Guinea provides for the issue of subsidiary legislation to set them (arts. 83 and 86).
One way in which licensing systems may contribute to adequate management is to require holders of licences to supply data gathered while acting under a licence for monitoring and statistical purposes. Guinea’s law, for instance, requires holders of every kind of licence to keep a register in which all relevant information must be reported daily (arts. 84, 88, 96 and 104), and other countries have similar requirements.
The issue of a licence may be subject to a test of the applicants’ knowledge and abilities. This may be a significant barrier to inadequate hunting practices and violations of the law which may be due simply to ignorance of biological or legal information. It is not uncommon for principal legislation to envisage the requirement of an examination, specifying subjects and other details, as is done in the laws of Italy and Germany. The possibility of testing applicants’ abilities is left to the discretion of licensing officers in Botswana (sec. 31(2)(b)). In Cameroon, the law requires applicants for a hunting licence to declare that they are acquainted with the legislation and that they undertake to abide by it (art. 38).
Similar purposes are pursued by requirements for supervision of some categories of hunters, in particular big game hunters, by hunting guides, who in turn need a special permit. The law of Guinea requires every tourism hunting expedition to be accompanied by a licensed guide, who must have passed a specific examination. Similar rules apply in Botswana, where a more ample discretion is left to the Director of Wildlife, who "may" require applicants to pass an examination. A professional hunter must take all reasonable steps to ensure that hunters assisted by him understand and respect the terms and conditions of licences or permits issued to them as well as the applicable legislation, and the burden of proving that he has complied with this obligation rests on him (secs. 43 and 44).
Most countries require some kind of authorization for hunting, and in some cases different kinds of hunting licences are set out in the legislation. Categories are not uniform. Some are based on different degrees of protection granted to the animals concerned or on different types and size of animals. There may also be different licences depending on the purpose of hunting (whether for recreation or tradition/subsistence), and licences for visitors as opposed to residents.
In Guinea, "small hunting permits", which are required for recreational and traditional hunting (arts. 81-84), are distinguished from "big hunting permits", which must be obtained to hunt partly protected animals (arts. 85-88). Botswana distinguishes between "bird licences", "single game licences", "small game licences" and "special game licences" (secs. 26-38), the latter of which may be issued to citizens "who are principally dependent on hunting and gathering veld produce for their food" (sec. 30). Malawi makes a distinction between "bird licences" (sec. 50) and "game licences" (sec. 51), while a specific "visitors’ licence" must be obtained by visitors, whether to take birds or hunt game (sec. 52), and "hunting" licences refer only to hunting of protected species in protected areas at specified conditions (sec. 54).
Most countries also require some permit or licence for carrying hunting weapons. Rules and conditions for the issue of such a permit, however, are rarely included in wildlife management or hunting legislation, as the possession of such a permit is often considered as a prerequisite for the issue of licences to hunt. Guinea, for example, requires applicants for hunting permits to attach their permit to bear arms to their application (art. 77), and Botswana allows licensing officers, before the issue of any licence, to require proof that the applicant holds arms certificates or permits (sec. 31(2)).
Taking of animals for scientific or educational purposes is also usually subject to a specific type of authorization. This is referred to as "special licence" in Malawi (sec. 53) and "scientific permit" in Guinea (arts. 99-105), and exists also in Botswana (sec. 39(1)(a). The latter country requires these permits to be issued by the Director rather than any licensing officer, and the conditions set out in Guinea are even more restrictive, as scientific permits may be issued only to people belonging to scientific institutions, and no hunting must be involved, unless related to the objective of the research and duly authorized under a permit.
Trade in wild animals, whether or not taken under a permit, is sometimes forbidden, as happens in Italy with respect to game, or sometimes requires a separate authorization, as happens in Guinea (arts. 89-98), where there is also a further distinction for the case of "oisellerie" (i.e. the taking of live birds) and in Botswana (sec. 39(1)(c)).
Import and export of live or dead specimens of wild animals are usually regulated by specific provisions which require some authorization. Uganda requires a permit to import and export any wild animal or part of them (sec. 6). Guinea prohibits the export of totally protected species, except for scientific or conservation purposes (arts. 49, 50, 53-55) and refers to regulations regarding import and export of partly protected animals (arts. 57, 59 and 60).
Permit systems regarding import and export of animals are usually in connection with the implementation of CITES in countries which are parties to it. Relevant provisions may be in the same legislation as that regarding wildlife management and hunting, but are frequently found in specific legislation for the implementation of CITES.
In addition to contributing to wildlife management, there are other purposes pursued through licensing systems. Licensing may facilitate enforcement of the legislation. Through the issue of licences hunters may be more easily identified. The suspension or cancellation of licences in the case of commission of offences may be useful means for preventing them or eliminating their consequences.
Where insurance is required to cover damage which may be caused by hunters, the law may require that it should be purchased at the time of application for or issue of a particular licence. Examples are found in the law of Guinea, which requires applicants for some hunting permits to give proof of having already obtained insurance through the Director of forests and wildlife (art. 78), as well as in the 1992 law of Italy (art. 12(8)). In Guinea, hunting guides must also be covered by a specific insurance regarding damage which may be caused by their clients vis-à-vis third parties during hunting (arts. 110-120).
Finally, licences practically everywhere and in every sector are a source of revenue, as a fee is usually charged when they are issued or renewed. Higher fees are often charged to foreigners for hunting or photographic safaris. Fees are also frequently charged for admission into protected areas.
Game ranching and breeding can be important contributors to food availability and revenues in rural areas. They may also have a significant impact on the environment and particularly other animals and generally biodiversity. It is therefore important for the applicable legal framework to take both concerns into account, attempting to strike a balance between the encouragement of these initiatives and conservation concerns. The following are some examples of relevant provisions in the legislation which has been examined.
The recent law (2000) of Colombia regarding wildlife management concentrates mainly on the creation and operation of "zoocriaderos", whether "open" (i.e. in which animals are periodically taken from the wild and introduced with a view to their exploitation), or "closed" (i.e. in which only an initial couple is introduced), or "mixed". Numerous rules are set out tending to ensure that such structures have adequate conditions for the development of animals both from the technical and the environmental point of view, with details on licensing and enforcement (arts. 7-28).
In Burkina Faso, both game ranching and breeding are subject to an "authorization". Within ranches, wildlife populations are to be monitored either by the rancher or by the wildlife administration, with a view to a rational management of captures. Areas utilized for breeding wild animals in captivity or semi-captivity must be fenced. Animals are not subject to the restrictions established for hunting and are declared to be the property of the breeder. For totally protected species, capture and sale are subject to specific conditions to be specified in subsidiary legislation (arts. 142-152).
In Botswana, a "permission" is required to farm or ranch game animals. Fencing may be required. "Protected" and "partially protected" game animals may be farmed or ranched only under a specific authorization. If the area is fenced, there is no limit to the number of animals of specified species which may be taken. Otherwise, culling is subject to a permit. A permit is also required for sale of animals, meat or trophies (sec. 24).
In Cameroon, a "licence" is required for both game ranches - protected areas managed for the purpose of repopulation and possible exploitation for food or other purposes (art. 2(11)) and for game farming - raising of animals taken from the wild in a controlled environment for commercial purposes (arts. 2(12) and 53).
In Mauritania, the law allows the creation of ranches and specific aménagements for wildlife breeding, for purposes of wildlife development, subject to the condition that they do not endanger surrounding areas and any others which may be specified by decree (art. 20).
In China, the breeding of animals is stated to be encouraged in the law (art. 17), but the only other relevant provisions are rules on the issue of licences, which are required for animals under special protection by the State pursuant to the "Regulations for the implementation of the law on the protection of terrestrial wildlife" (reg. 22).
The law of Albania requires an authorization for the breeding of wild animals, whether on public or private land. There is an obligation to provide 10 percent of the annual production of animals for the repopulation of forest areas, without compensation (art. 15).
The above rules most frequently aim at meeting environmental and biodiversity concerns in the regulation of ranching and breeding, almost systematically making these activities subject to authorizations. There is also a justified concern for the ranching and breeding of protected species, as gaps in the control system could facilitate violations of the law regarding the same species occurring in the wild.
Provided that these needs are adequately addressed, it would be useful if the legal frameworks were made generally more conducive to private or community initiatives in ranching and breeding of wild animals, avoiding unnecessary prohibitions. Appropriate exemptions may have to be set out for animals obtained from ranching and breeding, as making them subject exactly to the same rules as those found in the wild easily results in a disincentive. The law could also foresee incentives to the utilization of State lands for this purpose, as well as financial or other incentives. Among the rare examples of supportive provisions are those of the law of Burkina Faso, which exempts animals obtained from ranching and breeding from the restrictions established for hunting and makes them the property of the breeder. Similar provisions are found in Botswana.
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[24] In an interesting
analysis of African customary rules applicable to hunting and their evolution,
Chardonnet notes that in traditional societies various factors prevented the
taking of excessive number of animals, so that even under an apparent absence of
regulation wildlife conservation was not negatively affected by hunting. For
example, there were particular customs or religious beliefs which prohibited the
taking of some species; some areas were inevitably closed because not easily
accessible; the number of hunters, whose technical knowledge was passed along
through generations of the same families, was limited; and there was a general
decrease of interest in hunting during agricultural seasons. [25] Ly regrets that not all countries in West Africa address traditional hunting in their legislation, an approach which inappropriately neglects to take into account subsistence needs. [26] Harrop (2000) cites lacerta vivipara and anguis fragilis as only cases of reptiles which receive protection, though noting that they may not be killed or injured, but there is no prohibition against their taking. The same author (1999), in an analysis of EC and UK legislation, notes that comprehensive preservation of biological diversity may paradoxically be frustrated by the law dealing with species and habitat conservation, due to the emphasis on some species to the detriment of others, or the failure to address comprehensive interspecies and habitats relationships. Failure to preserve the "commonplace" in biodiversity may determine the loss of key components of ecosystems. [27] Council Directive 85/337/EEC of 27 June 1985 on the assessment of the environmental effects of certain public and private projects on the environment, as modified. The difference between the general environmental impact assessment process and the evaluation required under the Habitat Directive was emphasized in the Commission v. France case, cited at note 10. [28] The Game Conservancy Trust, a charity which is widely involved in innovative research and projects regarding farmland ecology, has analyzed the effects of intensification of agriculture on wildlife and the indirect effects of pesticide use on insects and their habitats. As these form the base of many wildlife food chains, the GCT has pioneered farming techniques which benefit game, such as "beetle banks" (mid-field refuges for predatory insects which invade the crop to eat pest species), conservation headlands (areas of outer six metres of cropped areas managed allowing beneficial weeds and insects to thrive with a view to benefiting wildlife), integrated crop farming (www.game-conservancy.org.uk). [29] Du Saussay (FAO, 1980), in examining the laws of some European countries, found that all of them still consisted "of texts which have been added one to the other on the basis of hunting laws while legislators have never examined the needs for protecting wildlife in a global manner". |
