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11. WILDLIFE


I. INTRODUCTION

The post-Rio decade has witnessed important developments in wildlife legislation. Traditionally, legislation on wildlife focused on protected areas and hunting restrictions (e.g., protection of listed species), and rarely adopted a comprehensive approach to wildlife management. While retaining some of these features, recent wildlife laws also contain important innovations.

First, well-established wildlife protection instruments, such as hunting regulations and the protection of particular species or habitats, tend to be reinterpreted in a new light. For instance, protected areas are increasingly established as parts of national systems rather than in a “patchwork” way. Moreover, within hunting regulations, greater attention is paid to the subsistence needs of traditional hunting communities.

Second, recent wildlife laws address new issues and envisage new means to protect and manage wildlife. In particular, they tend to give greater consideration to the interdependence among species, by providing for the protection of biodiversity. While extinction of species is part of a natural process in geological time, extinction rates have increased dramatically in recent eras. It is estimated that 24 percent of mammal species and 12 percent of bird species are currently threatened with extinction. (CBD/UNEP, 2001) This raises concerns not only because these particular species may not survive, but also because of the importance that biodiversity has for human life. For that reason, wildlife protection is seen as a part of biodiversity protection, calling for a comprehensive approach.

Similarly, rather than focusing on hunting alone, recent laws consider broader threats to wildlife, for instance by requiring an assessment of the impact of all activities potentially harmful to wildlife. They also place greater emphasis on management planning, requiring monitoring of the state of wildlife and envisaging management plans for the sustainable use of wildlife resources. Finally, in some cases they create mechanisms for the involvement of concerned persons in wildlife-related decisionmaking and for the participation of local communities in the economic benefits deriving from wildlife.

This chapter discusses the major trends emerging in national wildlife legislation. Brief mention is first made of developments at the international level.

II. INTERNATIONAL FRAMEWORK: KEY DEVELOPMENTS

2.1. Overview of the Main International Agreements

International wildlife law includes both species-based treaties, protecting particular species, and area-based treaties, protecting specific habitats, with the borderline between the two sometimes blurred (e.g., the Bonn Convention protects migratory species of wild animals, through means that include conservation and restoration of their habitats). The Convention on Biological Diversity adopts a more comprehensive approach, protecting biodiversity as a whole.

2.1.1. Species-based Treaties

One of the early species-based treaties is the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES, Washington, 1973), which protects endangered species by restricting and regulating their international trade through export permit systems. For species threatened with extinction which are or may be affected by trade (listed in Appendix I to the Convention), export permits may be granted only in exceptional circumstances and subject to strict requirements; the importation of these species also requires a permit, while trade for primarily commercial purposes is not allowed. For species which may become endangered if their trade is not subject to strict regulation (listed in Appendix II), export permits (including for commercial trade) can only be granted if export is not detrimental to the survival of that species and if other requirements are met. For species subject to national regulation and needing international co-operation for trade control (listed in Appendix III), export permits may be granted for specimens not obtained illegally.

Additions and deletions of species from Appendices I and II are made by the Conference of Parties (COP), according to established criteria. In 1994, the COP adopted new criteria, repealing those long in force. The new criteria encompass general principles such as the precautionary principle, and detailed biological and other requirements.

The Convention requires states to adopt legislation that penalizes trade in and possession of covered species, and to provide for the confiscation or return to the state of illegal exports. In the last decade, the COP has adopted several resolutions on enforcement and compliance, such as Resolution 9.9 (1994), recommending confiscation of specimens exported illegally; Resolution 9.10 (Rev.) (1994), on disposal of confiscated specimens or parts or derivatives thereof; and Resolution 11.3 (2000), recommending greater coordination between competent authorities, and outlining measures to promote enforcement, such as creating appropriate incentives for local and rural communities. The COP has also adopted resolutions on trade in specified species, and on ranching and breeding of protected species.

The Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979) requires cooperation among “range” states host to migratory species regularly crossing international boundaries. With regard to species considered as endangered (listed in Appendix I), states must conserve and restore their habitats; prevent, remove or minimize impediments to their migration; prevent, reduce and control factors endangering them; and prohibit their taking. With regard to other species which have an unfavourable conservation status (listed in Appendix II), range states undertake to conclude agreements to maintain or restore concerned species in a favourable conservation status.

The concept of conservation status, relating to population, range and habitats of migratory species, is an important feature of the Convention, and is used in other wildlife instruments (e.g., the EU Habitats Directive). For state parties, the concept requires that species or populations be maintained in a favourable status, which entails a number of obligations de moyen (obligations of process, as contrasted with obligations de résultats or obligations of results), such as controlling potentially harmful activities. (De Klemm, 1999) One post-Rio agreement adopted under the Convention is the Agreement on the Conservation of African-Eurasian Migratory Waterbirds (1995), which provides for concerted actions to be taken by the range states (117 countries, from the northern reaches of Canada and the Russian Federation to the southernmost tip of Africa) throughout the migration systems of the 172 species of water birds to which it applies.

A “Strategy for the Future Development of the Convention” was adopted by the COP in 1997, prioritizing objectives for the triennium 1998-2000. In 1999, the COP adopted the Strategic Plan for 2000-2005, whose objectives include prioritizing conservation actions for migratory species (inter alia by integrating consideration for migratory species in government policies, by mitigating obstacles to migration, and by identifying priority Appendix II species for the conclusion of agreements under the Convention); promoting accession of targeted countries to the Convention; and facilitating and improving implementation of the Convention, by mobilizing financial resources, rationalizing institutional arrangements and strengthening linkages with other international biodiversity-related arrangements.

2.1.2. Area-based Treaties

The main area-based treaties are the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention, 1971), and the Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention, Paris, 1972). As noted, these treaties protect habitats rather than particular species.

Parties to the Ramsar Convention must designate wetlands in their territory for inclusion in a List of Wetlands of International Importance, and promote their conservation and wise use, for example by establishing nature reserves. “Criteria for Identifying Wetlands of International Importance” were adopted at the 4th, 6th and 7th meetings of the COP in 1990, 1996 and 1999, respectively. A Strategic Plan 1997-2002 was adopted by the COP in 1996, emphasizing the need to integrate wetland protection with sustainable development (considered as synonymous with “wise use”[10]) to promote participation of local communities and involvement of the private sector, and to mobilize resources at the international level.

The World Heritage Convention provides for the identification and conservation of sites of outstanding universal value from a natural or cultural point of view, which are published in the World Heritage List. While responsibility for conservation is primarily vested in the state where the site is located, the Convention also provides for international assistance funded by the World Heritage Fund. At the time of writing, 721 properties were listed, including 144 natural and 23 mixed (cultural and natural).

2.1.3. Convention on Biological Diversity

The 1992 Convention on Biological Diversity (CBD) reflects the increased awareness worldwide of the interdependence among species. The Convention is not limited to particular species or habitats, but provides for the conservation and sustainable use of biodiversity, defined as “the variability among living organisms”, including “diversity within species, between species and of ecosystems” (art. 2).

Biodiversity conservation and sustainable use are to be pursued by adopting specific strategies, plans and programmes and by incorporating relevant concerns into any plans, programmes and policies. Sustainable use of biodiversity must also be a consideration in national decisionmaking. Parties must establish a system of protected areas, rehabilitate and restore degraded ecosystems and promote recovery of threatened species. The threats to biodiversity are not limited to deliberate killing (e.g. hunting): parties are required to identify and control all potential sources of adverse impacts on biodiversity, and to carry out environmental impact assessments of projects likely to have “significant adverse effects” on biological diversity (art. 14).

The COP has adopted a large number of decisions on the implementation of the CBD. Decision V/6 (2000), in particular, calls on parties to apply an ecosystem approach, while not precluding other conservation approaches, whether area-based or species-based. Ecosystem in this context is defined as “a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit”, without determining the spatial scale of that unit. The Decision also formulates guiding principles in this regard, including decentralization, consideration of adjacent and other ecosystems, long-term objectives and integration of use and conservation.

2.2. A Regional System: European Union Law

In addition to international agreements, wildlife is also protected by treaties adopted at the regional level. A particularly developed example of regional arrangements is the legal system of the European Union. In the EU system, some forms of legislation are directly applicable in member states (regulations), while others are not (as a general rule, directives). Moreover, implementation of EU legislation is strengthened by the presence of the European Court of Justice (ECJ), which interprets states' choices under the various directives, and in so doing creates a corpus of judicially created law in the EU. In the years since Rio, the ECJ has interpreted EU wildlife legislation in a number of cases.

The most significant instruments of EU wildlife legislation are the 1979 Birds Directive and the 1992 Habitats Directive. The former requires member states to take measures to maintain or restore wild bird populations to levels corresponding to ecological, scientific and cultural requirements, while taking into account economic and recreational requirements. Moreover, member states must take special conservation measures for species listed in Annex I, and in particular designate as special protection areas the most suitable territories for the conservation of those species. The Habitats Directive aims to promote the maintenance of biodiversity, while taking into account economic, social, cultural and regional needs. The directive provides for the designation of special areas of conservation (through a procedure contained in the directive), in order to ensure the favourable conservation status of listed habitats and species of Union interest, thereby creating a European ecological network (“Natura 2000”).

The ECJ has developed case law on the implementation of EU wildlife legislation, focusing on two key aspects:

As for the first category, in Commission v. France (Case C-166/97, 18 March 1999), the French government was found in violation of the Habitats Directive, as it had not adopted specific legislation for the assessment of plans and projects likely to have a significant impact on special areas of conservation. The provisions of French law on environmental impact assessment in general were considered inadequate in this regard because they did not include consideration of the specific conservation objectives of the site, as required by the directive. In Commission v. France (Case C-256/98, 6 April 2000), the ECJ considered that French provisions merely maintaining an area under the status of public domain, or as a hunting reserve, were inadequate to meet the requirements of the Birds Directive, in the absence of concrete measures regarding sectors other than hunting.

Moreover, in several cases the ECJ reviewed the criteria followed by member states in the selection of protected sites, thus limiting the extent of state discretion. For instance, in Commission v. Netherlands (Case C-3/96, 19 May 1998), the ECJ clarified that it may find violations of the Birds Directive if a member state classifies as special protected areas sites whose number and total area are “manifestly less” than the number and area considered as “suitable” (e.g. on the basis of the Inventory of Important Bird Areas in the European Union, a list of areas important for the conservation of wild birds in the EU). In Marismas de Santoña (Commission v. Spain, Case C-355/90, 2 August 1993), the court held that member states' discretion as to the identification of appropriate sites is limited by the ornithological criteria determined in the Birds Directive. In Commission v. France (Case C-220/99, 11 September 2001), the ECJ held that, in selecting protected areas under the Habitats Directive, member states must adhere to scientific criteria, reflect the ecological diversity of habitats and species in their territory and adequately represent habitats and species listed in the annexes to the directive. In addition, in Commission v. Germany (Case C-57/89, 28 February 1991), the Court held that the discretionary power enjoyed by states in reducing the size of existing protection areas is more limited than their discretion in selecting sites.

In the second category, in Association pour la protection des animaux sauvages et al. v. Préfet de Maine-et-Loire and Préfet de la Loire Atlantique (Case C-435/92, 9 January 1994), the court clarified that hunting seasons for migratory species and waterfowl must be determined with a view to protecting these species during premating migration. In Criminal Proceedings against Didier Vergy (Case C-149/94, 8 February 1996), the court held that member states are required to forbid trade in naturally occurring birds in their wild state, even if such birds are not listed in the annexes to the Birds Directive. In Criminal Proceedings against Godefridus van der Feesten (Case C-202/94, 8 February 1996), the ECJ affirmed the applicability of the Birds Directive to bird subspecies that naturally occur in the wild only outside the territory of member states, provided that the species they belong to do occur within such territory.

Two other cases addressed states' interpretations of the Birds Directive. In Italian Association for the World Wildlife Fund et al. v. Veneto Region (Case C-118/94, 7 March 1996), the ECJ held that derogations from the Birds Directive are permissible only on the grounds and under the circumstances specified in the directive itself. Finally, in the Lappel Bank case (Regina v. Secretary of State for the Environment, Case C-44/95, 11 July 1996), the ECJ held that economic requirements may not be considered in connection with the declaration or delimitation of special protection areas.

III. MAJOR TRENDS IN NATIONAL LEGISLATION

3.1. Wildlife Protection and Management

Some evolutions of international environmental law are reflected in developments in national legislation. While originally focusing on listed species or protected areas, and on specific threats thereto (particularly hunting), wildlife legislation in several states has evolved towards a broader consideration of ecosystems and of interactions between species, and towards a broader consideration of activities potentially having an impact on wildlife. As for the latter, it has been argued that emphasis has switched from management of species to management of activities and processes that may potentially harm them (De Klemm, 1999).

3.1.1. Hunting Regulations

Hunting regulations are a common and well-established form of wildlife protection. They include: (i) limits on the number of animals that may be hunted (e.g., through licence systems), usually fixed in subsidiary rather than in principal legislation; (ii) limits on the time of hunting, both by the day (most laws prohibit hunting between sunset and sunrise) and by the year (the fixing of open and closed hunting seasons is also common, especially under subsidiary legislation); (iii) limits on the places where hunting is allowed; (iv) limits on the species that may be hunted; and (v) limits regarding hunting methods and weapons (e.g. on the use of drugs, poison, explosives, etc.).

For their licence systems, most countries require some kind of authorization for hunting, and in some cases different kinds of hunting licences are set out in the legislation.[11] 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 different licences for visitors and residents. For instance, Guinea's law on wildlife and hunting of 1997 distinguishes between “small hunting permits”, which are required for recreational and traditional hunting, and “big hunting permits”, which must be obtained to hunt partly protected animals. Similarly, Botswana's Wildlife Conservation and National Parks Act of 1992, as amended, distinguishes between “bird licences”, “single game licences”, “small game licences” and “special game licences”, the last to be issued to citizens “who are principally dependent on hunting and gathering veld produce for their food”.

As with all licensing schemes, public policy can be taken into account in the issuance of hunting licences, by giving discretion to the administration to take into account certain criteria in granting or denying licences. One example is the 1992 law of Malawi, which provides that the administration's discretion is to be guided by “the interests of wildlife management”. The law 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”.

Licensing may also facilitate enforcement of the legislation, by permitting the identification of hunters and providing effective sanctions for offences (licence suspension or cancellation), and constitutes a source of revenue, as a fee is usually charged for their issuance or renewal. Appropriate definitions of hunting, including wandering with firearms, as in the law of Guinea and the 1997 wildlife and hunting law of Mauritania, may also help enforcement.

In countries where hunting continues to contribute to subsistence, recent legislation has taken into account the subsistence needs of local communities by exempting traditional hunting practices from hunting prohibitions. These exemptions are generally limited to specified species (usually small game) and to the areas where hunters live, and exclude hunting for commercial purposes. For example, the 1997 Forestry Code of Burkina Faso expressly allows subsistence or traditional hunting by local communities. Under Cameroon's forest law of 1994, traditional hunting is “free” on any land except within private properties, although within protected areas it may be subject to regulation; animals obtained from traditional hunting may not be used for commercial purposes.

The issue of whether and to what extent particular methods of hunting should be authorized because they are traditional, even though more destructive than other practices, is also debated in Europe. For example, the 1992 Italian legislation chose to specify permitted hunting methods, phasing out other methods until then traditionally practised.

3.1.2. Management Planning

Early wildlife management provisions were usually limited to hunting, as hunting was the most common focus of wildlife protection in legislation. Recent wildlife laws (e.g., Albania, Cameroon, Guinea, Malawi and Portugal) contain provisions on management planning, spelling out the basic dynamics of the management process and addressing protection as well as sustainable exploitation. Management planning is intended to guide administrations to adopt relevant decisions in a rational and transparent manner. The optimal process of management planning is first to assess the state of the resources, then to adopt management plans based on up-to-date findings, and finally to manage, subject to these plans.

Under the Italian wildlife and hunting legislation (1992), the National Wildlife Institute, a statutory body with research, training and advisory functions, is responsible for surveying the state of wild fauna and its evolution and relations with other environmental components. All agro-sylvo-pastoral lands are subject to wildlife/hunting management planning, to be carried out by local authorities. However, planning is not expressly required to be linked to the results of the surveys, and its scope is limited by the fact that hunting seasons are determined directly by principal legislation (although regional laws may modify them subject to specific conditions). The Spanish Law on Nature and Wildlife of 1989 (amended in 1997) also includes basic principles for the management of natural resources and biodiversity. It requires administrations to formulate natural resource management plans, with specified contents, which are to prevail over any other planning instruments which may apply to the same areas.

Hunting licence schemes can contribute to management where they are effectively used to limit the number of animals that may be taken under a single licence, based on a periodic assessment of sustainable levels of exploitation and adequate plans. However, provisions which clearly relate the number of permitted animals to actual surveys or management plans are rare. The Spanish law is one exception, where hunting is subject to a “technical plan” for the protection of game, to be adopted in accordance with regional legislation.

In some countries, legislation requires surveying and monitoring the state of wildlife (e.g. China, Lithuania, Tajikistan). In others, the law requires the Minister to ensure that measures taken are based on the results of scientific investigations (e.g. Malawi).

3.1.3. Species-based Protection

In many countries, legislation grants special protection to more valuable or endangered species, stating the fundamental principles in the basic law and listing the protected species in subsidiary legislation. For example, the law of Guinea provides for fauna conservation through favourable environment conservation and management as well as for maintenance or restoration of sufficiently diverse habitats, and requires lists of totally and partially protected species to be set out by implementing decrees. Similar approaches are taken for instance in Burkina Faso, Chile, China and Tajikistan.

In other countries, the lists of protected species are set out in the principal legislation itself. Examples of this approach may be found in Benin, Botswana, Cameroon and Mauritania. In Cameroon, an implementing decree of 1995 requires the classification set out in the 1994 law to be updated at least every five years.

In yet other cases, legislation allows more flexibility, by stating fundamental conservation principles and allowing (rather than mandating) the declaration of protected species. This is the case in Malawi (1992 Act) and Uganda (Wildlife Statute of 1996). 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.

Focusing protection rules on more valuable species often means that species other than mammals receive little or no protection. In the United Kingdom, protection for insects, fish, amphibians and reptiles is only envisaged for endangered or threatened species, with a few exceptions for some common reptiles. (Harrop, 2000) By contrast, the 1997 Law on Wild-life of Lithuania defines wildlife as including both vertebrate and invertebrate species, while some regions of Italy, such as Emilia Romagna, have adopted specific laws for the protection of “lesser fauna”. Prohibitions could also be strengthened by forbidding the possession (rather than only the taking) of specimens or parts of prohibited species.

Rules on endangered species may also regulate international trade in these species. In countries that are parties to CITES, import and export permit systems are frequently found in specific legislation for the implementation of the Convention. The law of Guinea prohibits the export of totally protected species, except for scientific or conservation purposes, and refers to regulations regarding import and export of partly protected animals. The taking of protected animals for scientific or educational purposes is usually subject to authorization, referred to as “special licence” in Malawi and “scientific permit” in Guinea. Conditions for these licences are very strict; in Guinea, 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.

3.1.4. Area-based Protection

A traditional form of wildlife conservation is the establishment of protected areas, where human activities are prohibited or controlled with a view to safeguarding particular species or their habitats. In recent legislation, as required under the Convention on Biological Diversity, the creation of protected areas is conceived as part of a national system, or even of an international network, rather than a patchwork of protected areas, so that objectives of overall biodiversity protection can more effectively be pursued. Examples of provisions which require the setting up of a national system are found in Bulgaria, Peru, the Philippines, Portugal and Romania.

Whether or not a system is set up, relevant legislation usually envisages different types of protected areas. Thus, the law of Botswana envisages game reserves or sanctuaries for specified species, as well as “private game reserves” created upon a request of the owner. Hunting or capturing of animals may be practised in “wildlife management areas” and “controlled hunting areas” - in the latter case only under a specific endorsement on a hunting licence and upon payment of a fee. Burkina Faso has whole or partial “fauna reserves” (where the hunting of all or some species is prohibited), “local refuges” (which may be reserved by local authorities to facilitate reproduction and exploitation of wild animals) and village hunting areas. Cameroon's law envisages “fauna reserves” and “hunting reserves” (zones cynégétiques) among protected areas. The former are slated for conservation, management and reproduction of fauna and its habitats, and hunting may only be authorized by the Minister in the framework of authorized management operations. The latter are reserved for hunting, and may be managed by the wildlife administration or a local authority or any person, and hunting within them is subject to the payment of a fee. The law also envisages territoires de chasse (any area where hunting is allowed and regulated) and territoires de chasse communautaire (areas of state land managed by a local community under a management agreement).

Some countries specifically require environmental impact assessments of actions which may affect protected areas (e.g. Cameroon, Guinea). The EU Habitats Directive requires a specific evaluation of the implications of relevant activities on sites slated for protection under the directive. This assessment must be made specifically in view of the site's conservation objectives; therefore, this process differs from the general environmental impact assessment process, as regulated in separate legislation.

In the declaration and management of protected areas, attention should be paid to the relationship of wildlife management to other forms of land use within protected areas and in neighbouring areas, and more generally to land use policies and planning. In Africa, the creation of protected areas has had a strong impact on human activities, particularly with increasing population pressure and land scarcity. These have led to increased competition and encroachments between different land uses (protected areas, agriculture, livestock grazing). (KWFT/UNEP, 1988) Thus, decisions regarding protected areas may have important implications for the development and livelihoods of local communities.

Land use policies sometimes conflict with wildlife protection. Subdivision of pastures into fenced subunits has often led to overgrazing and created impediments on wildlife migration routes and on herd mobility, which is a survival strategy. (KWFT/UNEP, 1988) Sometimes, conflicts have been caused by contradictory policies encouraging competing land uses, for example between expanding cultivated plots on the one hand and establishing protected areas for wildlife conservation on the other.

One solution is to consider wildlife management as a form of land use, as in Uganda, where wildlife legislation is intended to maintain optimum levels of diversity “commensurate with other forms of land use, in order to support sustainable utilization of wildlife”. The Kenyan wildlife legislation also requires taking into account the different forms of land use and the interrelationship between wildlife conservation and management and other forms of land use. The Italian legislation, mainly in an attempt to limit hunting, fixes percentages of land areas to be devoted to the different uses: 20 percent to 30 percent of the agro-sylvo-pastoral land area in every region must be devoted to wildlife protection, while the rest of the land area is open for hunting under management plans.

A number of policies and laws reflect a recognition that protecting wildlife through a focus on restricted geographical areas has its limitations. “Agenda 2000”, an EU plan of action, specifically refers to the protection of biodiversity in non-protected areas. Switzerland's 1996 legislation on nature and landscape also goes beyond protection of selected areas by requiring, if possible, the protection of indigenous flora and fauna by an “appropriate agricultural and sylvicultural exploitation of their vital space (biotope)”. For this purpose, it requires cooperation among authorities responsible for agriculture, forestry and protection of nature and landscape. In addition, a 2000 regional law of Tuscany (Italy), in implementing the EU Birds and Habitats Directives, takes into consideration ecological corridors between “sites of Community importance” with “sites of Regional importance”.

3.1.5. Protection of Biodiversity

In international law, there is a trend toward a comprehensive protection and management of biodiversity rather than limiting protection to listed species or areas. This trend is also beginning to appear in national legal systems, either through the incorporation of relevant objectives in environmental or wildlife management legislation or through the adoption of separate legislation on biodiversity. This acknowledges the weaknesses of laws concentrating protection exclusively on specific species, as species should not be considered in isolation from related species and their habitats.

Costa Rica is among the countries that adopted a specific law on biodiversity in 1998. The law requires that any central or local institution issuing plans and authorizations relating to natural resources, including fauna, must take into account the conservation of biodiversity. The law sets out general principles and provides for the creation of a national commission responsible mainly for policymaking and coordination among agencies. It also provides for the creation of a national system of conservation areas and for the related administrative structures. Access to genetic and biochemical components of biodiversity is regulated with a view to safeguarding the rights of local communities to be adequately informed and, if they wish, object to the operations.

The 1999 Australian Environment Protection and Biodiversity Conservation Act encourages the identification and monitoring of biodiversity. The law focuses particularly on planning, setting out various types of plans that must or may be adopted: bioregional plans, recovery plans and wildlife conservation plans. Other countries have incorporated obligations to protect biodiversity into legislation on environmental protection, wildlife or protected areas (e.g. Cameroon, Spain, Ireland).

3.1.6. Game Ranching and Breeding

Game ranching and game breeding can be important contributors to food availability and revenues in rural areas. They may also have a significant impact on the environment. It is therefore important for the applicable legal framework to strike a balance between the encouragement of these initiatives and conservation concerns. A common approach is to make game ranching and breeding subject to authorizations/permissions/licences (Albania, Botswana, Burkina Faso, Cameroon). Specific permits may also be required for the sale of animals or meat and for breeding of protected species (e.g. Botswana).

Other forms of regulation include fencing requirements for areas utilized for breeding of wild animals. Fencing may be mandatory (Burkina Faso) or not, in which case it may affect the applicable rules (e.g., in Botswana, if the area is fenced there is no limit on the number of animals that may be taken, otherwise culling is subject to a permit). Legislation may also subject ranching and breeding to the more general condition that they do not endanger surrounding areas (e.g Mauritania).

The 2000 law of Colombia regarding wildlife management concentrates mainly on the creation and operation of “zoocriaderos”, whether “open” (where animals are periodically taken from the wild and introduced with a view to their exploitation), “closed” (where only an initial couple is introduced) or “mixed” (where both techniques may be combined). Numerous rules ensure that such structures have adequate conditions for the reproduction of animals from both the technical and the environmental points of view, with details on licensing and enforcement. Under the hunting and wildlife law of Albania (1994), there is an obligation to provide 10 percent of the ranches' annual production of animals for the repopulation of forest areas, without compensation.

Appropriate exemptions with regard to licensing requirements may have to be set out for animals obtained from ranching and breeding, as making them subject to the same rules as those found in the wild may result in disincentives for ranchers and breeders. The legislation may also create incentives to promote these activities. Among the rare examples of such supportive provisions, the law of Burkina Faso 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.

3.1.7. Assessment of Processes Harmful to Wildlife

Reflecting recent developments in international law, a number of domestic laws have started to require the assessment and mitigation of any processes that may be potentially harmful to wildlife. The law of 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 regarding subsequent government action. 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.

The 1999 Australian law 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. 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. Any development that may have a significant effect on wildlife species or communities is subject to an environmental impact assessment.

3.2. Ownership of Wildlife and Related Rights and Obligations

3.2.1. Legislative Approaches to Ownership of Wildlife

Most legal systems address the issue of ownership of wildlife, which entails benefits (such as hunting rights and entitlements to revenue from wildlife viewing or hunting tourism) and obligations (such as management responsibilities and liability for damage caused by animals). The approaches taken are diverse, and there is no clear trend toward harmonization. However, wildlife is generally regarded either as a part of the rights of ownership of land or as state property. There is also a tendency to extend the prerogatives of private land owners by reducing limitations regarding wildlife found on their land. The following are the main approaches followed.

(a) Wildlife as State Property

In many countries, ownership of wild animals is vested in the state on behalf of and for the benefit of the people (e.g., China, Malawi, Tajikistan, Uganda). However, in some countries, although ownership of wildlife is vested in the state, hunting rights on private land are reserved for land owners. In Burkina Faso, for example, forests, fauna and fish are declared to be part of the national estate, but owners have the exclusive right to hunt on their own land. In Botswana, land owners and other specified lawful occupiers have the right to hunt without a licence on their land, subject to restrictions on the number of animals hunted and to the payment of fees. Land owners also have the right to authorize third parties to hunt on their land upon approval of the administration. A right of ownership in animals, however, is expressly recognized in the owner of land only in the case of animals kept or confined within a game-proof fence.

In other legal systems, even where wildlife is state property, the rights of private land owners are significantly limited, in that hunters are allowed access into any private land. For instance, in Italy wildlife is state property and hunters have free access to any land, including private lands, for hunting purposes. This free-access rule has two exceptions: first, access to cultivated or fenced land is prohibited; second, exemptions may be granted to land owners submitting specific reasons, and on the basis of regional legislation.

(b) Wildlife as Property of Land Owners

In the majority of Western European countries, wildlife ownership is vested in the owners of the land where the animals are found. In some cases ownership entails the automatic right to hunt (e.g., the United Kingdom and Norway), whereas in others such right is not automatic (France and Spain) (Bouckaert, 1999). A consequence of these arrangements is that owners are generally responsible for wildlife management within their land. As this is inappropriate where holdings are very small, various countries require a minimum size of land as a condition for their owners to exercise hunting rights, such as Belgium, France, Germany and Norway (Burhenne, 1999).

In France, the “Verdeille Law” of 1964 envisaged the compulsory grouping of owners of land areas smaller than 20 hectares, with devolution of hunting rights to the Communal Hunting Association thus created. Within the concerned areas, all specified hunters, such as land owners and other local residents, may hunt. In 1999, the European Court of Human Rights stated that the provisions making it compulsory for land owners to join hunting associations and to allow hunting on the concerned land violated the European Convention on Human Rights, namely article 11, on freedom of association, and article 1 of protocol 1, on the right of ownership (Decision of 29 April 1999, Chassagnou et al. v. France). A provision allowing individual owners to exempt their lands from Communal Hunting Associations was introduced in 2000.

An interesting example of legislation vesting ownership of wildlife in land owners is the Parks and Wildlife Act 1975 of Zimbabwe. Originally, ownership of wildlife was granted only to private land owners (i.e. white commercial farmers). In 1982, an amendment to the Act extended it to communal lands (inhabited by black farmers), although as communal farmers did not have formal land titles, ownership and management responsibilities were given to district councils rather than to customary land holders. This provided the basis for the Communal Areas Management Programme for Indigenous Resources (CAMPFIRE). While in theory embracing all natural resources, CAMPFIRE focuses on wildlife, as this provides quick and direct financial returns through safari hunting, photographic tourism, lodges, etc. Revenues from the sale of hunting quotas mainly go to the district council and rural community where the animal is shot. (Kalèn and Trägårdh, 1998) Problems reported include lack of authority of local communities and lack of competence in wildlife management by some district councils. Further evolution towards resource management as common property remains one of the objectives of CAMPFIRE.

(c) Wildlife as Res Nullius

In some countries, wildlife is considered as res nullius, as in Morocco (Mekouar, 1999), meaning that it belongs neither to state nor individual. Also under Lithuania's wildlife law of 1997, although wild animals found within fenced areas belong to the owner of the area, animals in the wild may not be considered the property of any natural or legal person. Moreover, land owners may make personal use of wild animals found on their land, although subject to obligations not to upset the balance of natural communities and to adopt protection measures.

3.2.2. Compensation and Protection of Persons and Property

Ownership of wildlife usually entails the obligation to compensate for damage caused by it. Countries take different approaches to compensation, depending on the owner of wildlife (state or land owners), and they sometimes limit compensation depending on whether or not the persons who have suffered damage have taken adequate action to prevent or limit it.

Where wildlife ownership is vested in the state, it is the state that must bear the costs of compensating for damages caused by wild animals. Several solutions have been adopted in this regard. In China, for instance, compensation is envisaged only for damage caused by protected species, and people have an obligation to adopt appropriate precautionary measures to prevent such damage (1992 Wildlife Regulations). In other cases, an exemption from liability is envisaged. In Botswana, loss of life or property caused by non-captive animals, whether or not within protected areas, is exempted from liability; however, damage caused to livestock by specified animals (such as lions and leopards) may be compensated if the predators have escaped into a national park before they could be killed. Due inter alia to difficulties in addressing increasing demands for compensation, some countries have undertaken a transfer of wildlife ownership from the state to land owners (e.g. Zimbabwe).

Countries also take different approaches regarding permissible action against wild animals that may threaten people or property. Killing of wild animals for this purpose is allowed more widely in defence of people than of property, but in any case various conditions are usually specified to prevent abuses (e.g., requiring notification to an officer prior to killing animals or promptly afterwards). In Uganda, for example, killing of animals is generally allowed in defence of people, whereas in defence of property, killing is allowed as a last resort, only if it does not endanger the survival of a species, and only following notification to an officer, who must determine the necessary action. In Botswana, land owners or occupiers have the right to kill animals that threaten persons, crops or other property on their land; circumstances must be reported as soon as possible to the wildlife administration. In Mauritania, hunting for defence of people or for protection of cultivated fields or livestock is allowed without need for authorization, but immediate notice of any action taken must be given to authorized officials.

It is less common to expressly authorize organized actions by the administration against animals that cause damage, although to prevent vigilantism this approach may be preferable to action by individuals. Under the law of Guinea, specially organized hunting of noxious animals (battues de destruction) may be exceptionally authorized and must be reported in detail to the national Director of Fauna, and resulting meat must be left to the local people who have suffered damage. However, provisions authorizing the indiscriminate killing of “noxious” animals are increasingly being abandoned. For instance, even the law of Guinea limits the destruction of noxious animals to dangerous species (e.g. poisonous snakes) and prohibits it within national parks and nature reserves.

3.3. Institutions, People and Wildlife

It is widely recognized that where opportunities for public participation in wildlife utilization are increased, and resulting benefits are made available to participants, the public is likely to be more willing to support adopted measures and to contribute to the costs of controlling wildlife. In line with these considerations, most recent laws envisage some involvement of the concerned people in wildlife management and in the creation or management of protected areas.

3.3.1. Information, Consultation and Advisory Bodies

A basic prerequisite for public participation is that relevant information must be made available. The law of Tajikistan, for example, establishes that citizens have a right to obtain complete information “on the conditions of the animal world”, and that the administration must arrange for the periodic publication of such information.

In many countries the law specifically requires some form of consultation with the public or with specified stakeholders in wildlife-related decision-making, such as the adoption of plans or the declaration of protected areas. In these cases, requirements include adequate publicizing of proposals, sufficient time to allow comments, and specific consideration of these comments by the authorities. In some cases the law requires the administration to take into account the interests of concerned people, without specifying how such interests should be identified and interpreted. The 1994 regulations of China on nature reserves, for example, require that local economic activities and the “everyday life” of residents be properly considered in the creation and management of nature reserves.

In Australia, in adopting threat abatement plans, or recovery plans for listed threatened species and ecological communities, regard must be given to the role and interests of indigenous people in the conservation of the country's biodiversity. Draft plans must be publicized in a number of specified ways, and comments received must be considered. Similar provisions apply to wildlife conservation plans.

In Botswana, public notice of proposals and subsequent confirmation by Parliament must be given for the declaration of national parks. Consultation with the public or even concerned owners does not seem to be required for the creation of other types of protected areas, regardless of the fact that “any” lands (and therefore not only public lands) may be affected. The administration is however required to consult with land boards and district councils in the management of wildlife management areas. In Uganda, public participation in wildlife management is an objective expressly stated in the law. Management plans for each wildlife protected area must be prepared following consultation with the public and the concerned district.

In other cases, consultation is envisaged through the creation of advisory bodies including representation of interested associations and people (e.g. Australia, Mexico, Romania). Under the Portuguese hunting legislation of 1999, the state must consult with the various interest groups and local authorities for the formulation of the national policy on hunting and of hunting management plans. Local hunting and fauna conservation councils are created to advise municipal authorities with a view to balancing hunting interests with agriculture, forestry, grazing and nature conservation, and enhancing the contribution of hunting to rural development. A General Council for Hunting and the Conservation of Nature is also in place, with advisory functions. These councils include representatives of environmental, hunters' and farmers' associations.

In some countries, people-centred bodies with responsibilities for wildlife management have been created. In Mauritania, wildlife management associations are established in each commune in order to enable people's participation in wildlife management. These associations participate in policy definition, wildlife monitoring and surveillance and establishment of hunting seasons and of allowed species and quotas. For their funding, they are entitled to a share (20 percent) of the moneys earned under the law.

In Italy, collective management of hunting areas was introduced by the law of 1992 and has been successful. Hunting areas within every region are divided into a number of units, where bodies including representatives of hunters' and farmers' associations (60 percent), of environmental associations (20 percent) and of local authorities (20 percent) are responsible for a number of activities, such as monitoring the state of the resources and planning habitat improvement.

3.3.2. Agreements Between Individuals or Communities and the Public Administration

Several laws envisage the possibility for interested individuals or communities to enter into agreements for the management of areas or resources for wildlife-related purposes which may or may not include economic exploitation. For example, under the Albanian law, the state promotes private investments aiming at the preservation and management of fauna, and the administration may enter into agreements with any persons concerning wild animal breeding, hunting, tourism or other activities related to the implementation of the law. In Romania, the law refers to “contracts” for the management of hunting areas, specifying their minimum contents.

The law of Guinea envisages the possibility for the administration to enter into management agreements for protected areas, particularly with local communities and associations. The Ugandan legislation also recognizes a role for local or private initiatives through “Community Wildlife Areas”, i.e., areas in which holders of property rights in land may carry out activities for the sustainable management of wildlife, subject to land use measures which may be prescribed. In Australia, “conservation agreements” may be signed between the Minister and indigenous peoples regarding protection, conservation and management of any listed species or ecological communities, or their habitats, and addressing mitigation or avoidance of actions that might adversely affect biodiversity.

A concern sometimes shown in legislation is to ensure that equal opportunities and fair distribution of benefits are offered to all community members. For example, in Cameroon, free technical assistance is offered by the wildlife administration to local communities for the formulation of agreements for the management of community hunting areas. A meeting of the community, supervised by the concerned technical administration, must be held for the designation of a person responsible for the initiative. All participants must sign the report of the meeting. In Burkina Faso, local authorities may benefit from the technical assistance of local wildlife services, and all possible measures must be adopted to ensure the participation of representatives of local communities in the management of “local refuges”. Revenue and taxes deriving from local refuges and village hunting areas must be distributed between local budgets and village wildlife management organizations.

3.3.3. Devolution of Authority

There are numerous examples of countries with a federal or similarly decentralized structure which have delegated some legislative powers in the wildlife management sector to local authorities. This has happened for example with Länder of Austria and Germany, cantons of Switzerland, comunidades autónomas of Spain and regions of Italy. The 2000 wildlife law of Mexico makes wildlife a shared responsibility of the federal government, states and communes. In most cases, local authorities are empowered to legislate within the framework set out by national legislation.

Sometimes powers given for the adoption of legislation at the local level are mainly for the regulation of local initiatives. The law of Burkina Faso, for example, charges local administrations (collectivités territoriales décentralisées) with determining the activities allowed within “local refuges”, while it charges local communities (communautés de base) with determining activities allowed in “village hunting areas”. In Zimbabwe the adoption of by-laws by district councils, enabled by legislation of 1988, has enhanced the implementation of the CAMPFIRE programme by revamping traditional wildlife management rules. (Kalèn and Trägårdh, 1998)

Some recent laws allow the definition of the respective responsibilities of the central government and local governments through agreements between them. In Australia, the Commonwealth and the states or self-governing territories may enter into agreements concerning environmental protection, sustainable use of natural resources and environmental impact assessment processes. In Mexico, after setting out the respective responsibilities of the various levels of government, the law similarly allows certain agreements for better coordination.

Even where local by-laws have an unclear legal status, they may still significantly contribute to wildlife management by creating local support for it. In Zanzibar, for example, antelope protection by-laws in some cases simply reinstated existing laws, but whereas these laws were poorly enforced, local by-laws had much better implementation, by shifting the perception of antelope from an open-access resource to a resource belonging to the villages. (Williams, Masoud and Othman, 1998) The uncertain legal status of by-laws under the legislation of Zanzibar, however, undermines the stability of these arrangements.

3.3.4. Socio-cultural Issues

Within wildlife management, an increasing number of laws show a concern for social and cultural issues. The law of Burkina Faso, for example, expressly aims at harmonizing the protection of natural resources with the need to meet economic, social and cultural requirements. Respect for cultural diversity generally tends to be emphasized in legislation on biodiversity (e.g. in Costa Rica). In France, hunting is defined as an “environmental, cultural, social and economic activity”. In the law of Mauritania, classification of land into some category of protected area or declassification is authorized only if the advantages from the ecological, social, economic and cultural points of view exceed possible disadvantages.

Consideration of cultural aspects may add value to opportunities for sustainable economic development offered by wildlife and protected areas. Some laws conceive protected areas as places where the whole local heritage is to be enhanced, in its natural, historical, cultural or anthropological dimensions. These objectives are pursued, for example, in the 1998 revisions to Italy's law on protected areas. Pursuant to these revisions, management of protected areas is expected to bring out the value of local agro-sylvo-pastoral uses and traditions. Rather than as a series of prohibitions, regulations for each park are to be conceived as a means of focusing on local characteristics and values and sustainably managing them. With a similar approach, under the 1998 Bulgarian law on protected areas, national parks are to be managed for purposes of sustainable use of renewable natural resources, but the state must preserve “traditional forms of livelihood”.

IV. CONCLUSION

Post-Rio wildlife legislation reveals some important innovations. These are mainly related to biodiversity, management planning and impact assessment, while other aspects have witnessed less remarkable change (e.g. licence systems and wildlife ownership). Some “traditional” instruments have been reinterpreted in order to pursue broader objectives. Thus, protected areas tend to be placed within national systems rather than established in a “patchwork” way, and in some (still rare) cases attention is paid to neighbouring areas; this allows for more rational and comprehensive protection.

More generally, post-Rio laws tend to go beyond protecting specified species, taking greater account of the interdependence between species and increasingly providing for the protection of biodiversity. They tend to require an assessment of the impact of all activities potentially harmful to wildlife, for example, rather than limiting attention to the dangers of hunting. Modern laws devote greater attention to management planning, making management processes and their basic objectives increasingly guided by the law rather than by the changing initiatives of administrations. Finally, recent laws tend to create rules, institutions and procedures to involve affected persons in wildlife-related decision-making, to allow local communities to participate in the economic benefits deriving from wildlife use and to consider socio-cultural dimensions of wildlife management. Stakeholder involvement may be not only envisaged in legislation but actually promoted by it.

Nonetheless, much remains to be done. For instance, few laws address issues of competing land uses and integration of wildlife management with other activities in rural areas. Existing management planning can be further improved by regulating planning processes in a more systematic and coherent way, and by explicitly linking management planning and measures to scientific research. Where protection is granted to particular species, other important, albeit less spectacular, biodiversity elements should not be neglected. For countries that still need to revise their wildlife legislation, the challenge is to catch up with the important developments witnessed in the post-Rio decade.

REFERENCES

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Burhenne, W.E. 1999. Le droit de la chasse en Allemagne et en Autriche. In Société Française pour le Droit de l'Environnement, La chasse en droit comparé. Actes du Colloque organisé au Palais de l'Europe, à Strasbourg, les 9 et 10 novembre 1995, L'Harmattan, Paris.

CBD/UNEP. 2001. Global Diversity Outlook, Secretariat for the Convention on Biological Diversity and United Nations Environment Programme, Montreal.

Chardonnet, P. (ed.). 1995. Faune sauvage africaine - La ressource oubliée. Fondation internationale pour la sauvegarde de la faune/Département d'élevage et de médecine vétérinaire. CIRAD-EMVT, Commission européenne, Brussels.

De Klemm, C. 1999. Les sources internationales du droit de la chasse. In Société Française pour le Droit de l'Environnement, La chasse en droit comparé. Actes du Colloque organisé au Palais de l'Europe, à Strasbourg, les 9 et 10 novembre 1995, L'Harmattan, Paris.

Harrop, S.R. 2000. The UK's Implementation of EU Legislation on Wildlife Management. In Provincia di Pesaro e Urbino, Proceedings of the Workshop A Consultative Process on Wildlife Management Legislation, Pesaro-Urbino, Italy, 28-30 September 2000.

Kalèn, C. & Trägårdh, N. 1998. Sustainable Use of Wildlife - A Case Study from the Campfire Programme in Zimbabwe. Swedish University of Agricultural Sciences, Minor Field Studies No. 40, Uppsala.

KWFT/UNEP. 1988. People, Parks and Wildlife. Kenya Wildlife Fund Trustees and United Nations Environment Programme, Nairobi.

Mekouar, M.A. 1999. Le droit de la chasse au Maroc. In Société Française pour le Droit de l'Environnement, La chasse en droit comparé. Actes du Colloque organisé au Palais de l'Europe, à Strasbourg, les 9 et 10 novembre 1995, L'Harmattan, Paris.

Overseas Development Administration. 1996. African Wildlife Policy Consultation - Final Report of the Consultation. Sunningdale Park, Berkshire, UK, 18 and 19 April 1996.

Provincia di Pesaro e Urbino. 2000. A Consultative Process on Wildlife Management Legislation, Proceedings of a Workshop held in Pesaro and Urbino, Italy, 28-30 September 2000.

Williams, A., Masoud, T.S. & Othman, W.J. 1998. Community-based Conservation: Experiences from Zanzibar. International Institute for Environment and Development, Gatekeeper Series No. 80, London.


[10] As early as 1980, recommendation 1.5 of the Conference of Parties stated that "wise use of wetlands involves maintenance of their ecological character, as a basis not only for nature conservation, but for sustainable development" (preamble).
[11] Most countries also require some permit or licence to carry hunting weapons; rules and conditions for such licences are rarely included in wildlife legislation, but the possession of these licences is usually a prerequisite for the issuance of hunting licences.

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