The Legal Aspects of Connectivity Conservation – A Concept Paper
The Legal Aspects of Connectivity Conservation
A Concept Paper
Barbara Lausche, David Farrier, Jonathan Verschuuren,
Antonio G.M. La Viña, Arie Trouwborst, Charles-Hubert Born
Project Director:Françoise Burhenne
IUCN Environmental Policy and Law Papers online – DRAFT 8.8.2012
The designation of geographical entities in this book, and the presentation of the material, do not imply the expression of any opinion whatsoever on the part of IUCN concerning the legal status of any country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries.
The views expressed in this publication do not necessarily reflect those of IUCN.
Published by: IUCN, Gland, Switzerland in collaboration with the IUCN Environmental Law Centre, Bonn, Germany
Copyright: © 2012 International Union for Conservation of Nature and Natural Resources
Reproduction of this publication for educational or other non-commercial purposes is authorized without prior written permission from the copyright holder provided the source is fully acknowledged.
Reproduction of this publication for resale or other commercial purposes is prohibited without prior written permission of the copyright holder.
Citation: Lausche, Barbara. (2012). The Legal Aspects of Connectivity Conservation-
A Concept Paper, DRAFT 8.8.2012, IUCN, Gland, Switzerland. 181 pp.
ISBN: ……….
Cover design by: IUCN Environmental Law Centre
Cover photos:IUCN Photo Library © Trond Larsen, IUCN Photo Library © Sue Mainka, IUCN Photo Library © Geoffroy Mauvais,, IUCN Photo Library © Jim Thorsell, IUCN Photo Library © IUCN / Claire Warmenbol
Layout by: Anni Lukács, IUCN Environmental Law Centre
Available from: IUCN Publications Services
Rue Mauverney 28
1196 Gland
Switzerland
Tel +41 22 999 0000
Fax +41 22 999 0010
A catalogue of IUCN publications is also available.
CONTENTS
Foreword
Preface and acknowledgements
Acronyms and abbreviations
Introduction to the Concept Paper
Context
Purpose and scope
Approach
Audience
Organisation
Part I – Basic principles and concepts for understanding connectivity conservation
Introduction
1Science and management
1.1Connectivity Conservation Science
1.1.1Conceptual foundation
1.1.2Connectivity conservation today
1.1.3Addressing scale
1.1.4Connectivity for climate change
1.1.5Issues of uncertainty
1.2Management concepts and tasks
2Benefits of connectivity conservation
Introduction and background
2.1Benefits of connectivity for biodiversity
2.2.Benefits of connectivity for climate change adaptation
2.3Benefits of connectivity for climate change mitigation
2.4Connectivity co-benefits for biodiversity and climate change
Key messages
3Governance for Connectivity Conservation
Introduction
3.1Applying the principles of good governance
3.1.1Transparency and participation
3.1.2Social equity and justice
3.2.Types of Governance
3.2.1Scale
3.3The role of government: state-owned or state-controlled land
3.4The role of government: private, indigenous and community land
3.5Choosing instruments
3.6Bottom-up or top-down?
3.7The role of NGOs
Key messages
Part II – Legal issues and instruments for connectivity conservation
Introduction
Recent research on legal approaches.
Organisation of this Part
1International law – global instruments
1.1Convention on Biological Diversity
1.2Climate Change Convention
1.3Convention on Migratory Species
1.4Ramsar Convention
1.5World Heritage Convention
1.6Other Instruments
2International law -- regional and supranational
2.1Regional law
2.1.1African Convention
2.1.2Bern Convention
2.1.3CMS ancillary instruments
2.1.4Other instruments
2.2European Union law and connectivity
Introduction
2.2.1European ecological network: Natura 2000
2.2.2Translating Natura 2000 into national law
2.2.3Connectivity guidance for the Natura 2000 network
2.2.4Challenges for Network implementation
2.2.5Species conservation
2.2.6Examples of related EU Directives
3National Policy and Law
Introduction – types of legal tools for connectivity
3.1National conservation and sustainable use legislation
3.1.1Conservation policies and plans
3.1.2Stand-alone legal instruments
3.1.3Protected areas legislation
3.1.4Biodiversity conservation laws
3.1.5Nature conservation or nature protection laws
3.1.6Wildlife conservation laws
3.1.7Sustainable resource use laws
3.1.8Specific ecosystem or habitat-type legislation
3.1.9Hydrologic connectivity – legal protection of environmental flows
Key messages
3.2Land Use Planning Legislation
Introduction
3.2.1Planning for Land Use and Conservation
3.2.2Scope of Plans
3.2.3Integrating land use and conservation planning
3.2.4Strategic environmental assessment of land use plans
3.2.5Addressing existing land uses and management practices
3.2.6Providing for active management
3.2.7Security of plans
Key Messages
3.3Development Control Legislation
Introduction
3.3.1Development control and land use planning
3.3.2Discretionary decisions
3.3.3Approvals with conditions attached
Key messages
3.4Voluntary conservation agreements
Introduction
3.4.1Agreements between whom
3.4.2Agreements about what
3.4.3.Security of agreements
Key messages
3.5.Economic and market-based instruments aiding connectivity conservation
Introduction
3.5.1.Payments, subsidies and fiscal advantages (positive incentives)
3.5.2.Direct funding for connectivity conservation projects
3.5.3.Market creation
4Special issues for Marine Connectivity
Introduction
4.1Defining marine connectivity
4.2Scientific understandings and management approaches
4.2.1Science
4.2.2Management
4.3.Special legal considerations
4.3.1International law and programmes
4.3.2Regional legal instruments
4.3.3International programmes -- MAB Biosphere Reserves
4.3.4National legal considerations
Key messages
Key messages and conclusions
Connectivity science and management
Governance
Benefits
Legal instruments
Generic considerations
Special marine considerations
Concluding remarks
References
1.Articles/books/reports
2.Legal instruments
a.Global
b.Regional
c.National/state/provincial
3.Websites
Foreword
- to be developed -
Preface and acknowledgements
- to be developed -
Acronyms and abbreviations
- to be developed -
Introduction to the Concept Paper
Context
1Connectivity conservation is an emerging field of scientific study within the broader subject of nature conservation. In the most basic terms, connectivity conservation is a conservation measure in environments modified and fragmented by human impacts and development that aims to link habitats for wildlife conservation and to maintain ecological processes for the goods and services they provide. Wildlife corridors and other natural linkages such as green belts have been common representations of connectivity conservation. The traditional design was a strip of land, or linear linkage, between two conservation areas. Today, the scientific emphasis has shifted to the more generic concept of connectivity conservation to reflect the wide variety of spatial arrangements useful to link species habitats and protect ecosystem processes across fragmented landscapes and seascapes. Science has made important strides in understanding and applying connectivity conservation across a range of scales and functions. In contrast, the field of law in connectivity conservation is still in very early stages of development. This paper begins to address these legal aspects.
2The study of connectivity in the ecological and conservation sense emerged in the 1970s in response to increasing fragmentation of landscapes due to development. The resulting habitat degradation and loss posed serious threats to the survival of wild species and disruption of critical ecological processes such as the hydrologic cycle. Wildlife corridors, habitat patches, stepping stones, and other spatial linkages became tools for restoring natural linkages, connecting important habitats, facilitating species movement, and sustaining ecosystem functions in highly fragmented areas. The concept today is recognized as an important design and management strategy to support biodiversity conservation and ecological processes in such areas and is applied to a range of spatial scales (from local to continental) depending on need and feasibility. In application, much of the recent scientific research and literature on connectivity conservation has focused on its role to support protected areas as part of protected area systems and networks This application provides a concrete focal point for studying legal aspects of connectivity conservation, and is a major underpinning for this paper. (Box 1 summarizes the current state of development of protected areas worldwide).
Box 1: Growth of protected areas and systemsWorldwide, protected areas have become a key strategy for conservation of biodiversity in all aspects, including the diversity of species, genes, and ecosystems. Since the 1960s, countries have made important strides in expanding their protected area systems especially in developing countries, in most cases with some form of legal protection. According to the latest global data on protected areas, by 2010 there were some 200,000 protected areas with legal recognition covering 12.7 per cent of the world’s land area; this compared with about 1.5 per cent coverage in the 1960s (UN Millennium Development Goals web site, Report 2011). Despite this progress, however, scientific studies continue to show that biodiversity is being lost at significant rates. Important biodiversity sites in marine and coastal waters are even more threatened. In 2010, designated marine protected areas in 2010 covered only about 7.2 per cent of coastal waters (out to 12 nautical miles) and 3.5 per cent of exclusive economic zones, with overall ocean coverage less than 1.5 per cent.
Adding to the challenges of coverage, many existing protected areas are not effectively fulfilling their biodiversity objectives. They face serious on-site stresses such as poor management, pollution, illegal logging or fishing, introduction of invasive alien species, mineral extraction, and unsustainable visitor use. As population and development pressures have increased, many protected areas are facing even greatest threats from outside their boundaries largely due to human-caused changes in land and marine use, degradation and fragmentation of supporting ecosystems, and loss of habitat linkages between protected areas. Overlaying these on-going stresses are new stresses from climate change. Many scientists believe that climate change presents one of the greatest long-term threats to biodiversity. Climate change impacts are already being felt on ecosystems and species, and are expected to get worse.
In recent decades, these concerns focused attention on the need to better integrate protected areas into their wider landscapes and seascapes if they are to survive over the long-term and achieve their conservation objectives. Two major management approaches are being used to help achieve this goal: l) the ecosystem-based approach to protected areas design and management and 2) shifting emphasis from individual protected areas to protected area systems and networks. Each of these approaches trigger the need for connectivity conservation.
A protected areas system or network may be all of the protected areas of a nation, or its terrestrial or marine components, where applicable. As laid out in international guidance, the system and new areas that may be added from time to time to strengthen the system have been established, where feasible, based on scientific criteria including representativeness and adequacy of the site, persistence to survive, and comprehensiveness (Lausche, 2011, p. 139). Protected area systems and networks are most successful if they are planned and managed using an ecosystem approach and with regard to the importance of their connectivity needs. The value of and benefits flowing from connectivity conservation in this context is enhanced by such planning and management.
3Governments around the world are beginning to recognize connectivity conservation as an important management tool for integrating protected areas into wider landscapes and seascapes as part of protected area systems and networks. A new Strategic Plan for Biodiversity 2011-2020 adopted by the Parties to the CBD in 2010 reflects the most recent global biodiversity and protected area commitments (CBD COP 2010 X/2). These are set forth in 5 strategic goals and 20 biodiversity targets called the Aichi Biodiversity Targets (for the Japan prefecture where adopted). While all the Aichi Targets have relevance for connectivity conservation, Target 11 is most explicit. It states:
By 2020, at least 17 per cent of terrestrial and inland waters, and 10 per cent of coastal and marine areas especially areas of particular importance for biodiversity and ecosystem services, area conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes” (Target 11, CBD Strategic Plan 2011-2020). (See the Annex for an elaboration of all 5 Strategic Goals and 20 Aichi Biodiversity Targets.)
4To achieve these global biodiversity targets, planning and management decisions for connectivity conservation need legal support. There has been little conceptual work to understand legal issues and potential legal approaches to support connectivity conservation on the ground. Within the field of law, concept of connectivity conservation is still being defined and developed.
Purpose and scope
5The purpose of this concept paper is to explore legal aspects of connectivity conservation for achieving biodiversity conservation and supporting the goals of protected areas. In light of climate change, the analysis also considers the role of connectivity conservation for building natural resilience of protected areas and for climate change adaptation and mitigation. The document reflects conceptual work undertaken during 2011-2012 by a protected areas and climate change expert group formed by the IUCN Environmental Law Centre (ELC) for the project: “Protected areas law at the intersection of biodiversity conservation and climate change”. Undertaken by ELC in collaboration with members of the IUCN CEL, WCPA, and the IUCN Global Protected Areas Programme, the project is believed to be one of the first legal studies looking specifically at legal mechanisms for connectivity conservation.
6Because connectivity conservation may be needed at a range of geographic scales, from large scale and regional to local, the scope of this paper extends to three levels of law relevant for connectivity:
- International level -- relevant treaties and programmes that may set out global obligations, commitments, or guidance, including under CBD and UNFCCC mechanisms, for countries to support connectivity conservation as part of their protected area systems and networks;
- Regional level – continent-wide, multi-country and transnational level initiatives, including European Union directives and Pan-European initiatives, and lessons being learned with regional agreements and programmes requiring or promoting connectivity conservation;
- National/subnational level – legal instruments and related tools useful to help achieve connectivity conservation at a country level and at provincial, state, and local levels to the extent to which conservation authority exists.
7At the national/subnational level, the legal tools that may be available for connectivity conservation range from direct regulation requiring implementation to incentives and other economic instruments promoting implementation through voluntary action. In addition, the substantive legal instruments relevant for connectivity may be viewed in two main dimensions:
- Legal aspects internal to protected area systems and networks – national/subnational protected areas legislation is a key area of law for addressing this dimension. The IUCN Guidelines on Protected AreasLegislation identify several elements important to consider for modern protected areas legal frameworks to support connectivity conservation internal to protected areas systems, including buffer zones, EIA requirements, and recognition of ecological corridors;
- Legal aspects external to protected area systems and networks –an array of other substantive laws are important to consider. These range from conservation and sustainable resource uses laws (e.g., for wildlife, forests, fisheries) to land use and development control laws. Connectivity conservation outside protected areas will involve mostly non-state owned or non-state controlled lands and resources. A wide range of land tenure systems and rights holder, including local communities and indigenous peoples, NGOs, private individuals and corporations, will likely have controlling interests in how lands identified for connectivity conservation are managed. The larger the landscape/seascape under consideration, the more likely there will be a combination of interests. This dimension normally is not within the jurisdiction of protected areas legislation.
Approach
8The approach used for preparing this paper has been for the authors to undertake research and conceptual analyses of various legal instruments in their areas of expertise that may be relevant for connectivity conservation, from international to national/subnational levels. As noted above, connectivity conservation is a new area for law. Thus, a conceptual approach to the topic provides the opportunity to explore a wide range of instruments for their potential as well as shortcomings for connectivity conservation. This paper is intended to provide a conceptual platform for more in-depth work, including specific case studies, to further define and develop this area of law.
9The paper also is intended to complement and supplement the IUCN Guidelines for Protected Areas Legislation (Lausche, 2011). Those Guidelines, accompanied by 15 case studies, identify key legal elements for modern protected areas legal frameworks, including several elements for connectivity conservation. These elements include provisions for management plans, buffer zones, connectivity corridors, climate change adaptation, environmental impact assessment, monitoring, and evaluation. The Guidelines provided a foundation and starting point for considering the legal aspects of connectivity conservation in more depth than had been possible through that project.
10Similarly, the paper is intended to complement Connectivity Conservation Management: A Global Guide published by IUCN in 2010 (Worboys et al, 2010). That publication synthesizes the latest scientific information on connectivity conservation, provides several examples of large scale connectivity conservation initiatives worldwide, and lays out a comprehensive management framework of key tasks for connectivity conservation management. Law in the form of regulatory instruments and economic instruments is recognized as a necessary component with two main functions: l) to set out the authority and obligations for planning and managing connectivity conservation and 2) to provide standards and other legal tools and approaches needed or useful to fulfil those obligations on the ground.
Audience
11This paper is aimed at a wide audience, from policy and law practitioners, protected areas managers and planners to a general readership. The intended audience may include international organizations working with connectivity (e.g., CBD and UNFCCC), conservation NGOs, local communities, indigenous peoples, and private sector interests with ownership or use rights. The IUCN Guidelines for Protected Areas Legislation and this associated paper, taken together, also are intended to be useful as teaching and training materials at university and practitioner levels, through such means as formal courses, E-learning tools, and special training workshops and seminars. Finally, as much as possible, every effort has been made to write the paper in a non-technical, reader-friendly style for the general public.
Organisation
12The paper is organized in two main Parts. These Parts are further divided into seven sections, numbered consecutively. Part I sets out basic concepts and principles related to connectivity conservation that are important to take into account for supportive legal instruments. Section 1 provides an overview of the state of scientific knowledge and management principles underpinning effective connectivity conservation measures on the ground. Section 2 reviews key benefits that may flow from effective connectivity conservation initiatives, including co-benefits for both biodiversity and climate change strategies. International initiatives through the UNFCCC programme of REDD/REDD-Plus are also reviewed in this context. Section 3 reviews of core governance principles and related considerations important for public policy and decision-making of governments generally, and gives special focus to their application with connectivity conservation.