Christian du Saussay
CHRISTIAN DU SAUSSAY teaches administrative law at the Faculté de droit de l'Université de Nice and is a specialist in the international legislation of national parks and nature reserves.
One glance at a world map with nature parks and reserves marked on it will reveal that many are in frontier zones. This is especially true of Europe and Africa.
There are a number of reasons for this. First, frontier regions are, quite often, scarcely populated. This makes it easier to place restrictions on hunting and on economic activities anal to stem the invasion of bricks and mortar and, by so doing, protect extensive ecological zones. Secondly, these same frontier regions are frequently those that will most repay the preserving. Having been less exposed to age-long harassment from mankind, animal species driven out of existence elsewhere have found a refuge here. The scenery has sufferend less at the transforming and aggressive hand of man. And, finally, frontiers often follow the crest line of mountain ranges, across a unique milieu harbouring specific fauna and flora that are worth conserving.
If, therefore, these frontier zones are an ideal place for creating parks or reserves, the next logical step is to bring them together to form extensive transfrontier areas dedicated to nature protection.
Indeed, several interests can be served at the same time. First among these, international relations: the creation of such an area offers an excellent opportunity for strengthening cooperation between countries and such bilateral ties as may already exist. This consideration, to be sure, has no direct bearing on the present subject but the idea is forcefully expressed in several juridical texts and is worth mentioning. Thus, in its recommendation of 22 January 1970, the Consultative Assembly of the Council of Europe speaks of transfrontier parks as likely to strengthen the spirit of cooperation and solidarity among European peoples (1). Again, the United States Congress, in authorizing the creation under an agreement with Canada of the Waterton-Glacier International Peace Park, underlined tin its statement its intent to recall in a permanent fashion the relations of peace and goodwill long existing between the peoples and the governments of Canada and the United States. For the rest, the term "peace" enshrined in the name of another contiguous protected area, the International Peace Garden held jointly by Manitoba and North Dakota, speaks for itself.
While on the subject of international relations, and taking up that of nature conservation, we may note that the protection of a frontier area park will be the better assured if the neighbouring state will give it an extension on its own territory. Some countries, particularly in Africa, do not have the means of enforcing fauna protection with an equal measure of success throughout their territories. As a result they tend to concentrate their efforts on one area or another. This means that the :frontier areas will be exposed to the incursions of poachers from across the border without much attempt to stop them being made by the state whose nationals they are. Now the surest way to persuade this state to mount sufficient police operations to prevent these depreciations by its own citizens is to have it declare a park contiguous to the first. The two neighbours with a common interest might then be expected to combine efforts to protect the entire transfrontier area.
A Frenchman, for example, will find an illustration of this close to home: his Italian neighbours noted that the ibex that were protected on their side of the frontier in the Gran Paradiso National Park were the target of hunters - or poachers - once in France. For many years the Italians did their utmost to prevent these animals from crossing the border, but no satisfactory solution was forthcoming until the French created their Parc national de la Vannoise.
The importance of contiguous parks or reserves (2) is brought out in all instances of a state frontier artificially dividing, say, a mountain massif, a species habitat or any other natural area deserving protected status.
Lastly, contiguity spells greater profitability. With a minimum of hindrance to human activities in the respective states, a maximum of space is set aside for a nature that knows no frontiers. The Parc national de la Vannoise covers an area of 53 000 ha. Adding to these the 62 000 ha on the Italian side, there are in all 120 000 ha of unbroken tract of country set apart for nature protection.
With the prospects opened up by transfrontier protected areas the jurist may be tempted to transpose to these, -if not the idea of an international public body, then at least those arrangements that govern portions of territory of common interest between two states-such as fisheries in frontier watercourses (3).
In fact, while states indeed do seek transfrontier contiguity in declaring protected areas, bilateral cooperation in the organization and management of these areas remains for the most part extremely limited.
The many ways in which transfrontier protected areas have so far been established range from a simple succession of unilateral decisions to the implementation of fully fledged bilateral treaties. For the sake of simplicity, let us examine four typical cases.
When comparing the dates of birth of contiguous parks we find that the initiative is frequently taken by one country several years before its neighbour acts. The former establishes a frontier park on its own without consulting that neighbour. The latter will match the other's action in an equally unilateral fashion. But while there is nothing to distinguish the juridical situation of parks of this sort, it is at least the result of an unofficial dialogue, as it were, between the authorities of the two countries concerned. Consideration for the other has had a decisive role in the creation of the second park. This may be seen even more clearly in those cases where the first country subsequently adjusts the boundaries of its park, to bring about a longer shared boundary.
This is exactly the case with the Franco-Italian complex. The Italians created their Gran Paradiso National Park in 1922 out of a hunting reserve of the Crown. From 1936 onward, attention was given in scientific and hunting circles in France to plans for an ibex reserve designed to extend on the French side the protection already afforded these animals on the Italian side. The plan failed due to opposition from the local inhabitants. It was taken up again later, however, and led to the establishment in 1963 of La Vannoise National Park. In those days the common boundary was six km in length. Very soon interest developed in increasing this line of contact between the two protected areas. Less than a year after setting up La Vannoise-on 5 and 6 November 1964- a conference of experts, Italian and French, agreed on the need for territorial extension on the Italian side. A similar wish was reaffirmed at the ceremonies for the twinning of the parks in 1972. The extension was finally brought about by the Piedmont regional authorities, in August 1974, by creating a fauna sanctuary extending under strict protection regulations over some 2 400 ha and stretching the common frontier to 14 km.
There are other cases of parks which are not, or were not originally, contiguous but simply close to each other. The Swiss National Park was founded in the Engadine on the border with Italy in 1914. Italy established the Stelvio National Park in 1935 at no distance from the Engadine, and still without a point of contact with the Swiss park. In 1974, following an expansion in the boundaries of the Stelvio, a wide "corridor" was laid out in order to join up the two parks.
Similarly, the Spanish Ordessa National Park was created in 1918 and that of the French Pyrenées Orientales in 1967. The former is separated from the frontier by an average distance of two km, while the latter actually abuts the frontier. Plans have since been put forward to bring these two parks into direct contact (4). Meanwhile, contiguity is brought about by means of a virtually continuous series of national hunting reserves along the Spanish side of the frontier.
Thus, even when it is a result of merely unilateral decisions, contiguity denotes a certain harmonization. The real step forward is taken when contiguity becomes a bilateral legal agreement.
It sometimes happens that contiguity is established unilaterally as a first phase and that juridical recognition is granted later by the states concerned.
Such is the case of the Waterton-Glacier International Peace Park. In 1895 Canada declared an area of 51 950 ha, bounded to the south by the border with Montana, as a national park under the name of Waterton Lakes National Park. In 1910 the United States in its turn dedicated the Glacier National Park, covering 405 211 ha. These two contiguous tracts form a homogeneous whole traversed by a border that appears all the more artificial for its being rectilinear. Protection measures are identical, public ownership of the land obtains on both sides and, then, the two administering authorities, the US National Park Service and the Canadian National Park system, were similar in most respects. In 1932 the two countries decided to combine their respective areas into an international park, to be known as the Waterton-Glacier International Peace Park. However, we should not be misled by this high-sounding designation. The new park is not the outcome of an international treaty but of two distinct national laws, one adopted on 2 May by the United States Congress, the other by the Canadian Parliament on 26 May of that year. Moreover, the respective components have preserved their national identities; and this international park still does not as such have its own autonomous authority.
A not dissimilar situation exists on the Polish-Czechoslovak border, though in this case a treaty paved the way for the establishment of the contiguous parks there.
Poland and Czechoslovakia stand out as pioneers where contiguous parks are concerned.
Once these two countries had reached a settlement on a border dispute, between the two wars, they came together to make the Krakow Protocol, as it is called, in 1925. This provided for the creation of protected areas along their common border and for a tourist agreement designed to facilitate access by visitors. The statutes of these areas have experienced many vicissitudes, and it was not until after the Second World War that the three Polish-Czechoslovak parks -Tatras, Pieniny and Karkonosze -were created. Once again we notice a time-lag between the birth of the respective parks. The Tatras National Park was established in 1948 on the Czechoslovakian side and in 1954 on the Polish side, the Pieniny Park in 1967 and 1954 respectively, and that of Karkonosze in 1963 and 1959. Once again we should stress the fact that, despite the Krakow Protocol, there is "no official contract made between the parks", according to a letter to this writer from the directors of the Krakow park.
It is a rare occurence, therefore, for contiguity to be the result of bilateral official action.
There are some examples of parks or reserves established under an international agreement.
Topping the list - by reason of their entirely exceptional situations-are the Park of the "W", and the complex formed by the National Park of the Boucle de la Pendjani and the Arly wildlife reserve. These were legacies from the French colonial administration in Africa.
Spurred on by the London Conference of 1933 on the protection of fauna and flora (5), the European powers developed in the African territories under their administration El protected areas policy which often preceded the creation of similar areas in their own countries.
In 1954, for instance, the Government of French West Africa set up the Park of "W"-thus named because of the double loop made at this point by the River Niger. The park has a total area of 1 132 000 ha, of which 502050 lie in the territory of Benin, formerly Dahomey, and 330 000 in Upper Volta.
That same year both the " Boucle de la Pendjani" National Park in Dahomey and the adjacent Arly wild-life reserve in Upper Volta were declared protected areas by the French administration. When they achieved independence (1960) Benin (ex-Dahomey) and Upper Volta maintained this complex of protected areas which, as a result, are now under two distinct sovereignties.
Another unusual case is that of the Roosevelt Campobello International Park. Despite its Latin-sounding name Campobello is a small island off the coast of New Brunswick (Canada), close to the town of Calais (Maine, US). It had been President Franklin D. Roosevelt's summer residence and the Canadian and US governments, wishing to preserve the memories associated with the President, declared Campobello an international park on 22 January 1964 (6). Here, the interest is purely an historical one and the smallness of the area precludes any comparison with other contiguous conservation areas.
While the distinction is obvious - in juridical terms - between contiguity coming into being as a result of unilateral decisions and contiguity enshrined in an international agreement, that distinction can become quite blurred when countries simply get together to protect one and the same frontier zone. The Franco-Italian programmes in the Southern Alps make a good illustration of such a case.
THE MONTECRISTO, OR TRIFINIO PARK, A CLOUD FOREST SPANNING THE FRONTIERS OF GUATEMALA, EL SALVADOR AND HONDURAS look for a coincidence of material, legal and psychological conditions
Contiguous protected areas are established by unilateral procedures. But these procedures do go forward simultaneously and, what is more, they take into account what the other side is doing. This is the justification given for the actual layout of the Mercantour National Park in France. The idea prevailed that the economic potential of the area could be served by breaking up the territory into four "nuclei" or islets, three of which abut the Italian frontier. Italy would see to it that these three islets would not in fact be isolated. As explained in a memorandum of the Nature Protection Directorate (7), ". . . once the Italian nature park is established, it will provide continuity between the nuclei referred to in the preliminary project as 'Mercantour Vrai' and 'Haute-Tinée Lauzanier' and will link up the Ligurian Alps nucleus with a far more extensive protected area." And the author adds "Once the entire system has been set up, both in Italy and in France... there will be a vast 'international' park in the Southern Alps comprising three protected areas each covering hundreds of square kilometres."
The three "islets" are:
· Wholly in France-the Mont Pelat-Mont Mourrier sedimentary massif.
· Part in France and part in Italy -the Argentera-Mercantour crystalline massif.
· For most part in Italy, but with the highest peak in France - the Ligurian Alps massif, which is totally different from the others.
But things do not look entirely the same on the Italian side and their projects appear less precise than the Mercantour memorandum would imply.
The Mercantour nucleus adjoins the Italian Valdieri-Entracque hunting reserve, which has been proposed as a national park. For the moment, the Piedmont Region has included the area in its regional plan for parks and nature :reserves.
To appreciate the significance of this step, we should :mention that the Piedmont Region legislation created a two-stage mechanism. Inclusion in the regional plan immediately confers protected status on the area, but for a duration of five years only. In the meantime, the authorities are to introduce a law instituting the park and thereby giving it its definitive status.
For its part, the Region of Liguria is planning a Maritime Alps nature park contiguous to the French transition zone to the Mercantour.
Lastly, the Italian Ministry of Agriculture contemplates the creation of a :Maritime Alps National Park which would prolong southward the Valdieri-Entracque Park contiguous to the French park.
The intended link-up between the Mercantour nuclei would thus be assured. However, judging from documents available to the author this problem of continuity for the northernmost nucleus of the French park (Haut-Tinée) remains open. The transfrontier park concept is clearly an attractive one, and it is hoped that concerted action by states may turn contiguity to the best possible account by cooperating in the management of frontier parks.
The 1933 London Convention invited states to cooperate in the management of contiguous parks and reserves (8). Similarly, the 1971 Ramsar Wetlands Convention provides (article 5) that the contracting parties will consult each other on the implementation of obligations deriving from the Convention, particularly in the case of a wetland area extending into the territory of more than one contracting party or where a catchment basin is, shared by several contracting parties, They will endeavour, moreover, to coordinate and actively support their present and future policies and regulations for the conservation of wet lands and the flora and fauna there,
The advantages of this sort of cooperation are particularly felt where wildlife management, the visiting public or the harmonization of protection measures are concerned.
Concerning wildlife, one must first know the species present and their biotopes, then maintain an exchange of scientific information or organize joint surveys, and finally, keep a balance in the animal populations. Coordinated action is invaluable, if not indispensable, for successful control of epizootics or for the difficult task of reintroducing a species that has disappeared.
Finally, cooperation is needed if poaching is to be controlled.
As regards the visiting public, one suggestion might be to map out routes allowing for border crossings without: irritating formalities. Another, to coordinate the information material provided for an understanding of nature - anything from exhibitions with explanatory comments to simple tourist brochures and leaflets.
The most difficult task will be to achieve a certain unity in the protection measures to apply to transfrontier areas, since these involve jurisdictional powers and national legislations of the states concerned.
There is no doubt, however, that the degradation of a park by building construction or any other human activity inimical to nature conservation will not necessarily stop at the border. There is an objective solidarity between two adjoining protected areas. The authority responsible for the one cannot disregard the laws and by-laws operative in the other.
This. indeed, is what is expressed in the recommendation, mentioned earlier, of the consultative Assembly of the Council of Europe where it is noted that national laws governing regional nature parks still differ considerably and often do not provide the conditions necessary for the creation of transfrontier parks.
Collaboration between countries in these fields can only become a reality in the form of cooperation between distinct statutory bodies. Even where the countries agree to give their adjoining areas the same description of "national park", each park retains its juridical distinctness and its national administration. To take one example, the United States Act instituting the Waterton-Glacier International Peace Park makes it clear (section 2) that where administration, promotion and development are concerned, that part of the Waterton-Glacier International Peace Park situated within United States territory is to be known as the Glacier National Park.
In other words, the United States side of the international Park remains under the responsibility of the National Parks System (9).
That being so, it is necessary to understand how this cooperation for managing transfrontier areas develops. Concrete solutions are many and varied but can be reduced to three main types depending on whether such cooperation is the outcome of de facto practice or takes aver the general frontier machinery or, again, has its own institutional set-up.
De facto relations which may exist between two adjoning parks are similar to good-neighbour situations. Their development depends in large measure on the personalities of the authorities responsible for the parks and rarely have all the marks of being businesslike. The two parks, La Vannoise and Gran Paradiso, for example, were twinned in :1972. The story of their relations reads as follows. The directors of the respective park authorities had met several times. The guards of one park carried out a number of "raids" into the territory of the other park. On the French side, the guards were then suspended. An Italian team of scientific experts was invited to France to discuss wildlife problems with their French opposite numbers. Some weeks later a similar meeting was held in Italy. The Italians also took part in a scientific meeting at the National Veterinary School in Lyon.
The record also speaks of an Italian expert who, in 1975, obligingly anaesthetized an ibex with a tranquillizer gun, enabling the French veterinarians to diagnose an epizootic outbreak responsible for the death of some 25 animals on the French side (10).
However incomplete, this account brings out the limitations of de facto cooperation. The solution to many problems arising for both parks could be greatly facilitated by formally concerted action. Where the Italian authorities prohibit the grazing of sheep because they consider these animals to be carriers of disease likely to affect wildlife, the French disagree and permit sheep grazing. It is to be hoped that the two contrasting scientific views will be put to the test and that a common policy is eventually adopted on grazing. Another case calling for cooperation concerns control against the rabies that has emerged among the foxes of the Gran Paradiso. Cooperation is essential also for studying the movements of animals across the border or for reintroducing species that have disappeared. The failure of an Italian attempt in 1975 to reacclimatize a couple of lynx illustrates the difficulty - one of the animals was found dead near Chambéry.
One cannot simply wait for de facto cooperation to develop along empirical lines, for this runs counter to the principles of public law and comes up against administrative difficulties. The French director who must pay an official visit to his Italian colleague requires mission instruction from his Minister, cleared by the Comptroller, while the physical organization of the mission is the responsibility of the Ministry of Foreign Affairs. Any action for cooperation involves expenses, but no budget has been provided so far.
Because of the freedom they enjoy, private associations could play a useful role, providing opportunities for unofficial cooperation and acting as pressure groups common to both parks. It seems this potential has not been exploited in this case.
The fact of being international neighbours raises a number of problems which states try to solve by setting up joint commissions or by concluding frontier agreements. Where specific cooperative bodies for contiguous parks and reserves do not exist such general frontier procedures can be used for settling matters of common interest.
Thus, France and Spain have appointed the International Pyrenees Commission, which since the last century has exercised general jurisdiction in dealing with frontier problems and has on occasion even been accorded decision-making powers. An agreement for the repression of poaching and other hunting offences is being currently negotiated within the frame of this Commission. France is also party to the Franco-German-Swiss Commission, set up on 5 May 1975, in Bonn, to study neighbourhood relations in the Upper Rhine frontier areas. Environment and land-use planning figure among the terms of reference of this body.
Other types of conventions may serve in the management of contiguous areas, notably agreements concerning the environment. For example, Article 16 of the Agreement of 29 December 1949 between Norway and the USSR, which provides for "cooperation in all fields relating to the protection of game, including birds, and the establishing of identical hunting seasons along certain parts of the frontier" (11).
Institutions for cooperation between transfrontier protected areas may be common to a series of parks and reserves situated in the same region or may be limited to a single unit formed by contiguous areas.
The multi-park formula has been adopted by Niger, Benin and Upper Volta. These countries inherited vast protected areas created by the former French colonial administration and have striven to organize cooperation between themselves for the management of this legacy, making use of the framework offered by the Conseil de l'Entente, of which they are members.
This is a regional international organization created in 1959 at Abidjan, with wide terms of reference encompassing economic development, technical cooperation and foreign policy. By a decision of the Heads of State of 26 February 1976, there was appointed, within the inter-state technical committee on tourism of the Conseil de l'Entente, a parks and reserves coordinating commission on which all members are represented (Togo and Ivory Coast, in addition to Niger, Benin and Upper Volta).
The commission's programme includes the tasks of tightening up poaching control (an acute problem in Africa), the joint training of wardens, harmonization of the laws of these countries and the seeking of sources of financing. In reality, the contiguous parks and reserves of this region, in particular the "W" Park, are facing great difficulties. The plan to set up a single authority to administer the "W" Park, submitted to the three Governments concerned in 1965, has not yet become effective (12).
For it is not enough for transfrontier cooperation to bring about an alignment of laws or a concertation of policies but it must lead to coordinated solutions to the management problems coming up daily before the various park authorities. Hence the desirability, in any event, of having institutions in common for each park.
The Polish and Czechoslovak parks have achieved their cooperation through a regular exchange of information in writing, the holding of regular joint meetings of their scientific bodies and managerial staff meetings for solving urgent problems.
Similarly, the Clervaux treaty appointed a joint commission consisting of eight members and meeting twice yearly, for the German-Luxembourg Nature Park.
The procedures for such cooperation unfold at a number of levels. First, cooperation presupposes the communication of information and documentary material legal texts, scientific studies, tourist literature. Secondly, it finds expression in a concerted approach to scientific or administrative matters within the various joint bodies. But these bodies have no decision-making powers. One might e expect that they should be consulted before certain decisions are taken. They may be empowered to take cognizance of problems on their own authority and to make recommendations accordingly (23), but these remain powers of a purely advisory nature.
Decisions having a binding effect in law are reserved to the respective national authorities or must be embodied in an international agreement. In the latter case, prudence counsels limiting the temporal scope of such agreements. Thus, the Clervaux treaty does indeed create an obligation (article 3) for the respective parties to refrain from reducing the total are under forest and to preserve landscapes of exceptional beauty within the territory of the German-Luxembourg Nature Park (24). But it is only a ten-year treaty (though, as one would expect, renewable).
Finally, cooperation may take the form of joint undertakings or the sup plying of timely services - services which, however, could never be institutionalized in conflict with the principle of the distinction between contiguous legal entities.
Being eminently desirable, cooperation between transfrontier parks and reserves needs to be embodied in international agreements or cannot expect to develop in any real sense. But the best approach is the cautious one, by pursuing this cooperation where the material, legal and psychological conditions for success already exist. In the case of, say, the French frontiers, this could occur in the field of scientific research, and in regulating access for the visiting public.
1. Consultative Assembly of the Council of Europe, 21st Ordinary Session, Recommendation 587 (1970) on the creation of regional nature parks and frontier nature parks.
2. Contiguity, in the present context, is to be understood as applying to areas lying astride an international frontier.
3. Cf. H.T. Adam, Les Etablissements publics internationaux, Paris. L.G.D.J., 1957, p. 40 f.
4. These plans were the subject of the Kai-Curry-Lindahl report to the Conference on National Parks held at Calgary, Canada, in 1968. (Nelson and Scace, publisher, 1968. The Canadian National Parks: today and tomorrow. Proceedings of a Conference held at Calgary, Alberta, 9-15 October 1968. 2 vols. University of Calgary.)
5. Convention on the protection of the fauna and flora in the natural state, signed at London, 8 November 1933.
6. This agreement was followed by an Act of the Assembly of the Province of New Brunswick making it possible for the necessary land to be purchased. Ratification was authorized by the Canadian Act of 30 June 1964.
7. Cf. "Mise au point sur les projets de delimitation et de réglementation du Parc du Mercantour" - Larch 1977 (Memorandum attached to the file presenting the preliminary projects for this park).
8. The London Convention has been gradually superseded, as ratifications and accessions are declared, by the Algiers Convention on the Conservation of Nature and Natural Resources, of 15 September 1968. Curiously enough, the latter convention is much more vague on the matter of interest to us here. Article XVII does not go beyond providing for cooperation between States in order to give full effect to the provisions of the Convention and whenever any national measure is likely to affect the natural resources of the other.
9. This legal duality finds an extension in a separation of a physical kind. Under the treatise of 11 April 1908 and 24 February 1925 concerning the American-Canadian border, an international commission is appointed for the maintenance of the physical fixtures marking the border and to keep a zone free of vegetation that might obstruct vision. The commission has made no exception in the case of this international park. Across this there stretches a rectilinear strip kept bare for a width of 50 feet (on the American side) by spraying with picloram. (Private communication to the author by the US National Park Service entitled "Wilderness and International Boundary Areas".)
The Roosevelt Campobello International Peace Park might seem to be an exception, to the extent that it is administered by a joint commission and financed by contributions from the two governments. But this is in effect a museum under international management on a minute portion of territory made available by the Canadian Government; and its status resembles, if anything, that of an intergovernmental body rather than that of a transfrontier protected area.
10. This account was noted down in the course of interviews granted the author by the Directors of the Gran Paradiso and Vannoise parks.
11. Cf. Alexandre Kiss, Survey of cur rent developments in international environmental law. IUCN Environmental Policy Paper, No. 10, Morges, 1976, p. 90.
12. United Nations list of national parks and equivalent reserves, 1971 ea., p. 370.
13. In this connection the Clervaux treaty (article 4) provides that... 2) the Governments of the Contracting States will communicate to the Commission any plans for the management of the Nature Park, 3) the Commission shall submit to the Governments of the Contracting States projects; for the further management of the Nature Park and for a harmonization of measures to be taken by either party... Article 5 enables the Commission to make recommendations concerning the demarcation of the Nature Park.