International Environmental Law – The Most Important Legal Issue of the New Decade

This essay was submitted to the PLN’s policy essay competition and won first prize. It responds to the question ‘What is the most important public interest law issue of this new decade?’

Written by Kaitlin Bakken.

Note: The author would like to thank Gerry Nagtzaam for inspiring his students to follow their interests and passions in his unit International Environmental Law.


I INTRODUCTION

Biodiversity loss continues to be one of the most prominent issues for this generation despite the development of International Environmental Law (IEL). [1] Many pinpoint the anthropocentrism, or the consideration of humankind as superior,[2] as the root of IEL’s failures.[3] As described by Gillespie, anthropocentrism ‘assumes a mandate to experiment, operate, or to manipulate Earthly Nature as humans see fit’.[4] Upon consideration of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)[5] and the value humans attribute to wildlife, it will be shown that anthropocentrism jeopardises the good intentions of IEL.[6]Consequently, the most important public interest law issue of this new decade is the ineffectiveness of IEL, stemming from its anthropocentrism, which enables us to use and abuse natural resources.[7] To combat this ineffectiveness, there needs to be a shift in attitude that considers environmental, rather than human-centric concerns, if biodiversity is to stand a chance against climate change.[8] 

II THE VALUE OF OTHER SPECIES

Biodiversity is ‘the very web of life’.[9] It is necessary for a healthy, functioning environment and economy.[10] Wildlife is a vital aspect of our biodiversity and holds an important role in the ecosystem or biological community of organisms in which it finds itself.[11] Large herbivores, for example, can be a food source for predators, play a key role in dispersing seeds, provide benefits to small herbivores, birds and rodents and act as a form of tourism.[12] International treaties have come to recognise that biodiversity loss is a ‘common concern of mankind’[13] and consequently developed to protect wildlife loss. However, law is reliant on humans writing the rules.[15] 

Law is a socially constructed institution that has developed to manage the co-existence of humans with other species and the environment.[15] The value we attribute to species is therefore reflected in the laws we develop to protect their interests.[16] The fact that humans view the world with human senses ‘does not mean they cannot ‘attribute’ intrinsic value to it’.[17] However, it has proven detrimental where economic interests are put against the protection of individual animals. IEL in this respect has been willing to impose rules regarding the protection of wild species, but only within the context of our human needs.[18] This construction creates a difficult barrier to nonhuman beings and entities ever being fully recognised by the law.[19] Therefore, IEL must manage the philosophical and ethical dichotomy between animal and human interests. Although the laws attempt to rectify the issues and improve environmental decay, it does so through a human lens. Something that needs to be changed. 

III THE ANTHROPOCENTRISM OF WILDLIFE PROTECTION

It has been argued that CITES is one of the most effective and well-known treaties in conservation efforts.[20] It recognises the value of other species as ‘an irreplaceable part of the natural systems of earth’.[21] Species are protected from trade, according to the appendix they are listed in, which is determined by level of endangerment.[22]

Despite prima facie ecocentric concerns, animals are referred to as ‘specimens’ through CITES which is indicative of their status as a product rather than a sentient being.[23] This construction makes it easier to justify human trade in wildlife and conserves species for aesthetic or economic purposes (trade) rather than the benefit of the environment as a whole.[24] On one hand, humans see value in charismatic animals such as the endangered black rhino or African elephant,[25] on the other, there is a multi-billion dollar industry in wildlife trade.[26] 

Under CITES, species protection is balanced with the concept of sustainable use.[27] Wildlife is therefore considered a resource that can be used by states if done so sustainably or with a permit.[28] ‘Sustainable use’ is defined by the Convention on Biological Diversity,[29] another key instrument in the protection of biodiversity, as ‘the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations’.[30] The human-centric construction of wild animals in this light arguably reduces ‘creatures to mere playthings for humans’[31] which are protected in order to maintain a base population for exploitation or appreciation by future generations.[32] By reinforcing exploitation through sustainable use, CITES fails to indicate that individual animals are what make up a species and therefore their protection is necessary to manage the existence of wildlife with human development.[33] While the economic benefit derived from a species is prioritised, population loss and, consequently, biodiversity loss will continue. The fact is intentional and unintentional exploitation of wildlife through poaching, hunting or trapping ‘has led to the extinction of 9 megafauna species in the past 250 years’.[34] 

IV HUMAN NEED VERSUS WILDLIFE PROTECTION 

Where there is a mutual concern for the destruction of a natural habitat, the argument for environmental protection is straightforward. In Tennessee Valley Authority v Hill 437 US 153 (1978), a biology association was successful in arguing that the plaintiffs were violating American laws, giving effect to CITES at a domestic level, by proceeding with plans to build a dam despite the presence of an endangered species, the snail darter fish. Although this case was a perceived success, the snail darter fish appeared to serve more as a ‘canary-in-the-coalmine’.[35] The key legal representative for the endangered species later stated that the protection of the fish was enveloped in political interest as the dam would destroy a significant portion of natural landscape.[36] If it were not for the human interest in protecting the landscape, the life of the other species would not have been considered.[37]

Conversely, where human interests are superior, wildlife species are generally unprotected. In Kruger and Another v Minister of Water And Environmental Affairs and Others [2016] 1 All SA 565, the South-African High Court overturned a moratorium on rhino horn trade. The court considered that rhinoceros breeders would be detrimentally affected by the ban and that use of rhino horn is not precluded from the concept of sustainable use by virtue of protection of animal welfare.[38] Some critics argue that this decision promoted an anthropocentric application of laws to give economic relief to rhinoceros breeders.[39] However, there were legitimate legal loopholes that enabled the South African High Court to appropriately set aside the moratorium due to improper notice. 

In both of these cases, the utilitarian protection of the environment for the sake of human social or economic benefit is recognised.[40] This utilitarianism is a key reason why CITES enables trade in some species and why illegal trade continues even where trade is banned such as that of the African elephant.[41] It should be noted that most of the world’s biodiversity and endangered wildlife is found in lesser developed countries (LDCs) which also demand support for development.[42] As these states have an important role in the construction of IEL, well-being of wild animals is of secondary importance to people seeking development, although not for bad reason.[43]. 

V THE CALL FOR A SHIFT IN ATTITUDE 

IEL serves as a ‘moral compass, reminding governments and the public of their commitments to conservation’.[44] IEL consequently needs to consider the environment with more veracity if parties are ever to implement environmental protections. A number of approaches have been coined to combat the anthropocentrism of IEL. For example, a shift to a more ecocentric approach to IEL, focusing on environmental needs and redacting concepts such as sustainable use, would invite the respect of ecological limits.[45] However, this approach may undermine the desire of LDCs to continue their development irrespective of wildlife and their habitats. Additionally, with the challenges of climate change which will invariably affect humans, it may be difficult to focus on non-human centred approaches.[46] Another suggestion is the importation of compassion into IEL to ensure that other species are given appropriate consideration both by the rule of law and legislation at a domestic level which will consider individual animal welfare and rights.[47] This debate is one that cannot be given due attention in this essay,[48] however, it has been met with scepticism by those who believe economic value may be a better protector of wildlife.[49] In either case, it is clear that there must be a shift in attitude that ‘recognises the importance of relationships between individual animals and the environment in which they live’[50] separate to their utilitarian purpose. If IEL is to be more effective, we will need to make this change with a shift in attitude. 

VI CONCLUSION

The anthropocentric nature of IEL is the key barrier to environmental and wildlife protection. IEL exists inside a ticking time bomb of climate change and consequently non-human species are reliant on a change in human attitudes which will ultimately shift our laws. Insofar as the importance of the environment is jaded by our desire to use natural resources, the environment will not be protected. Therefore, the most important issue humankind must consider in the coming decade is finding a balance between human interests and environmental concerns to protect the environment and the lives of wildlife species.

Footnotes

[1] See Gerry Nagtzaam, Evan Van Hook and Douglas Guilfoyle, International Environmental Law: A Casestudy Analysis (Routledge, 2019), 329. See Louis Kotzé, ‘The Anthropocentric Ontology of International Environmental Law and the Sustainable Development Goals: Towards an Ecocentric Rule of Law in the Anthropocene’ (2018) 7 Global Journal of Comparative Law 5.

[2] Kotzé (n 1) 14.

[3] Helen Kopnina, Hadyn Washington, Bron Taylor and John J Piccolo, ‘Anthropocentrism: More than Just a Misunderstood Problem’ (2018) 31 Journal of Agricultural and Environmental Ethics 109, 109; V. De Lucia, ‘Competing narratives and complex genealogies: The ecosystem approach in international environmental law’, Journal of Environmental Law 27 (2015) 91, 94; Kotzé (n 1) 5. 

[4] Alexander Gillespie, Conservation, Biodiversity and International Law, (Edward Elgar Publishing, 2012), 9.

[5] Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973, 993 UNTS 243, (entered into force 1 July 1975) (‘CITES’)

[6] See Schaffner, (n 5).

[7] Kotzé (n 1) 14, De Lucia (n 3) 95, Joan Schaffner, ‘Value, wild animals and law’ in Werner Scholtz (ed) Animal Welfare and International Environmental Law (Edward Elgar Publishing, 2019) 8, 8.

[8] Stuart Harrop, ‘Climate Change, Conservation and the Place for Wild Animal Welfare in International Law’ (2011) 23(3) Journal of Environmental Law 441, 451.

[9] Secretariat of the Convention on Biological Diversity, Sustaining Life on Earth: How the Convention on Biological Diversity promotes nature and human well-being (April 2000), Hamdallah Zedan, Executive Secretary, ii. 

[10] Nagtzaam, Van Hook and Guilfoyle (n 1) 330.

[11] Peter Edwards and Cyrus Abivardi, ‘The value of biodiversity: Where ecology and economy blend’ (1998) Biological Conservation 83(3) 239, 239.

[12] William J Ripple et al., ‘Collapse of the World’s Largest Herbivores’ (2015) 1 Science Advances 5, 6-7cited in Bram Janssens and Arie Trouwborst, ‘Rhinoceros Conservation and International Law: The Role of Wildlife Treaties in Averting Megaherbivore Extinction’ (2018) 21(2-3) Journal of International Wildlife Law & Policy 146, 146.

[13] Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) (‘CBD’), preamble. 

[14] Arie Trouwborst, et al, ‘International Wildlife Law: Understanding and Enhancing Its Role in Conservation’ (2017) 67(9) BioScience 784, 784. 

[15] Kotzé (n 1) 11; Hon. Justice Brian J Preston SC, ‘The challenges of approaching judging from an Earth-centred perspective’ (Speech, Southern Cross University, 29 August 2017) 1.

[16] De Lucia (n 3) 117.

[17] Kopnina et al (n 3) 121.

[18] Schaffner (n 5) 8.

[19] Anna Grear, ‘Deconstructing Anthropos: A critical legal reflection on “Anthropocentric” law and Anthropocene “humanity”’, Law and Critique 26 (2015) 225, 231. 

[20] Patricia Birnie and Alan Boyle, International Law and the Environment (Clarendon Press, 1992) 475-480 cited in Micheal Bowman ‘Conflict or compatibility? The trade, conservation and animal welfare dimension of cites’ (1998) Journal of International Wildlife Law and Policy 1(1) 9, 9.

[21] CITES (n 7) preamble.

[22] Ibid arts III, IV, V.

[23] David Bilchitz, ‘Why conservation and sustainability require protection for the interests of animals’ in Werner Scholtz (ed) Animal Welfare and International Environmental Law (Edward Elgar Publishing, 2019) 207, 210.

[24] Ibid 210-212.

[25] Helen Kopnina, ‘Wild Animals and Justice: The Case of the Dead Elephant in the Room’ (2016) 19(3) Journal of International Wildlife Law and Policy 219, 220.

[26] Maylynn Engler and Rob Parry-Jones, Opportunity or Threat: The Role of the European Union in Global Wildlife Trade (Report, TRAFFIC Europe, June 2007) 9.

[27] CBD (n 6) preamble; CITES (n 7) preamble.

[28] Although not in the text of CITES, “sustainable use” is reiterated throughout the Resolution of the Conference of the Parties in effect after the 18th meeting: CITES Strategic Vision: 2021-2030, Res Conf. 18.3, 18th mtg, CITES Doc Conf. 18.3 (17-28 August 2019) Annex I and Resolution of the Conference of the Parties in effect after the 16th meeting: CITES Strategic Vision: 200 8-2020, Res Conf. 16.3, 16th mtg, CITES Doc Conf. 16.3 (Rev CoP17) (13-25 March 2010).

[29] CBD (n 13)

[30] Ibid, art 2.

[31] Ibid.

[32] Bilchitz (n 23) 232.

[33] Schaffner (n 5) 32-33.

[34] Nagtzaam, Van Hook and Guilfoyle (n 1) 330.

[35] Zygmunt Plater, ‘Human-Centred Environmental Values Versus Nature-Centric Environmental Values: Is This the Question?’ (2014) 3(2) Michigan Journal of Environmental & Administrative Law 273, 284-289.

[36] Ibid.

[37] Ibid.

[38] Kruger and Another v Minister of Water And Environmental Affairs and Others [2016] 1 All SA 565 [34], [1]. 

[39] Melanie Murcott, ‘Transformative Environmental Constitutionalism’s Response to the Setting Aside of South Africa’s Moratorium on Rhino Horn Trade’ (2017) 6 Humanities 84, 84-85. 

[40] Kotzé (n 1) 21.

[41] Elizabeth Bennett, ‘Legal ivory trade in a corrupt world and its impact on African elephant populations’ (2014) 29(1) Conservation Biology 54, 56.

[42] Jessica Sawyer and Sarah Sawyer, ‘Lessons from the Mist: What can International Environmental Law Learn from Gorilla Conservation Efforts?’ (2011) 23 Georgetown International Environmental Law Review 365, 368.

[43] Nuding (n 50) 208-209. 

[44] Trouwborst (n 14) 787. 

[45] See eg. Will Steffen, Katherine Richardson, Johan Rockström and Sarah Cornell, ‘Planetary boundaries: Guiding human development on a changing planet’ (2015) 347(6223) Science 736; Kotzé (n 1); De Lucia (n 3).

[46] Jorge Vinuales, ‘Current Legal Developments: Balancing Effectiveness and Fairness in the Redesign of the Climate Change Regime’ (2011) 24 Leiden Journal of International Law 223, 228.

[47] See eg. Harrop (n 8); Bilchitz (n 23); Michael Bowman, ‘Animals, humans and the international legal order: towards an integrated bioethical perspective’ in Werner Scholtz (ed) Animal Welfare and International Environmental Law (Edward Elgar Publishing, 2019) 38; Grear (n 19); Sophie Riley, ‘Wildlife law and animal welfare: competing interests and ethics’ in Werner Scholtz (ed) Animal Welfare and International Environmental Law (Edward Elgar Publishing, 2019) 148.

[48] See eg, Harrop (n 8); Bilchitz (n 23); Bowman (n 20); Bowman (n 46); Riley (n 47); Schaffner (n 5); Peter Singer, Animal Liberation (Random House, 1975).

[49] Markus Nuding, ‘Wildlife management in Namibia: the conservancy approach’ in Tim O’Riordan and Susanne Stoll-Kleemann (eds) Biodiversity, Sustainability and Human Communities: Protecting beyond the Protected (Cambridge University Press, 2002) 189.

[50] Bilchitz (n 23) 213.

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