Macquarie Journal of International and Comparative Environmental Law
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Macquarie Journal of International and Comparative Environmental Law |
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WERNER SCHOLTZ[*]
The conservation of a species may be so successful that it leads to overpopulation of the particular species. This in turn might negatively affect the existence and hence conservation of other species. In some instances culling may be used to curb the overpopulation.[1] In South Africa, for example, overpopulation of elephants in national parks has in the past been addressed by way of culling. However, scenes of the culling provoked such a tremendous domestic and international outcry that a moratorium was imposed on this practice in 1994.[2] Kruger National Park is once again experiencing a crisis because of the rising number of elephants.[3] The rapid consumption and destruction of vegetation by the elephant population is endangering the existence of other animals in the Park.[4] Four possible options have been proposed to address the problem.[5] The first is culling. The other options are relocation, contraception and a combination of culling in larger parks and contraception in smaller ones.[6]
The question which therefore arises is whether states should make use of culling as a measure to address the adverse effects arising from overpopulation of animal species. The relevance of international law must be taken into consideration. In this regard the objective of biodiversity as included in the Convention on Biological Diversity[7] (CBD) may be of relevance.[8]
Accordingly, the author aims to clarify the content of the objective of biodiversity in the CBD as well as its underlying philosophical approaches. In this regard the effect of biodiversity on state sovereignty will be dissected to generate unique proposals to the vexing problem.
Biodiversity is a non-renewable resource which is important for the survival of humanity.[9] Biodiversity, as such, is mostly described in relation to three hierarchical categories: genetic diversity (the variation of genes within a species); species diversity (the variety of species within a region); and ecosystem diversity (the variety of ecosystems within a region).[10] Human activities contribute to the destruction and loss of biodiversity which leads to negative ecological consequences. Approximately 40 000 species are lost each year.[11] Sands names three reasons for biodiversity and nature conservation. Firstly, biodiversity provides an actual and potential source of biological resources;[12] secondly, it contributes to the maintenance of the biosphere in a condition which supports life and biodiversity; and thirdly, for ethical and aesthetic values.[13] Since 1972[14], various international instruments[15] have focused on the importance of biodiversity and nature conservation.[16] Hence the CBD was concluded in 1992 which has three main aims: conservation of biodiversity; sustainable use of the components of biodiversity; and the fair and equitable sharing of the benefits arising from the utilization of genetic resources.[17]
Throughout the CBD a distinction is made between conservation and sustainable use. Article 6, for instance, refers to general measures for conservation and sustainable use. Articles 6 and 10 require the development of national strategies and plans; the integration of the conservation and sustainable use of biodiversity into sectoral or cross-sectoral plans, programmes and policies as well as into national decision-making. Article 7 further obliges each Party to identify important components of biodiversity and identify priorities which may need special conservation measures, or which may offer the greatest potential for sustainable use. Additionally the article provides for the identification and monitoring of processes and categories of activities that may have significant adverse effects on conservation and use. Article 8 places emphasis on in-situ conservation, whilst article 9 provides for ex-situ conservation measures to complement the in-situ measures.[18] It is noteworthy that the CBD favours an ecosystem approach.[19] Article 10, for instance, contains various obligations in relation to the sustainable use of biological resources.
Although there is a clear and evident distinction between the concepts of conservation and sustainable use, the CBD has not defined the notion of ‘conservation’.[20] ‘Sustainable use’ has, however, been defined 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’.[21]
Protection, preservation and conservation are the three concepts mostly used[22] in relation to fauna and flora. The Convention on the Conservation of Migratory Species of Wild Animals of 1979 (Bonn Convention), which has as its objective the conservation and management of migratory species,[23] focuses on international co-operation in relation to ‘migratory species which have an unfavourable conservation status’.[24] ‘Conservation’, as such, is not defined but ‘conservation status’ is defined as ‘the sum of influences acting on the migratory species which may affect its long-term distribution and abundance’.[25] The Bonn Convention continues to list conditions which may constitute an unfavourable conservation status.[26] It is especially interesting to note the condition that ‘there is not, and will not be in the foreseeable future, a sufficient habitat to maintain the population of the migratory species on a long-term basis’. Reference to the future, to an extent, coincides with the intergenerational equity notion of sustainable development. Birnie and Boyle remark that ‘conservation has in the past not become an issue until the level of threat to a species either endangers its survival or threatens seriously to deplete it or a particular stock’.[27] This approach accords with the conservation of species as resources exploitable by man. This idea is reflected by the only international definition of ‘conservation’ as found in the Geneva Convention on Fishing and the Conservation of the Living Resources of the High Seas of 1958 which states that: ‘conservation’ of the living resources of the high seas means the aggregate of the measures rendering possible the optimum sustainable yield for these resources so as to secure a maximum supply of food and other marine products’.[28] Referring particularly to marine living resources, ‘maximum sustainable yield’ and other management concepts,[29] are widely relied on to achieve conservation objectives.[30] The World Commission on Environment and Development Experts Group on Environmental Law defines conservation in very general terms to be:
The management of human use of a natural resource or the environment in such a manner that it may yield the greatest sustainable benefit to present generations while maintaining its potential to meet the needs and aspirations of future generations. It embraces the preservation, maintenance, sustainable utilization, restoration, and enhancement of a natural resource or the environment.[31]
Accordingly, it is apparent that the notion of ‘conservation’ refers to protection and preservation. This, besides management of natural resources, includes restoration and safeguarding of ecological processes and genetic diversity in order to sustain their maintenance through sustainable utilization.[32] Sustainable utilization is pivotal to conservation. It does not merely refer to, for instance, limiting exploitation by setting quotas, but includes other significant elements.[33] Relevant examples are inter alia the preservation of biodiversity, a duty to rehabilitate non-viable resources, the integration of biological resources needs into general development procedures, the principle of intergenerational equity, and the application of the precautionary approach.[34] These other elements are important because management of living resources cannot only focus on the usage of particular species but must also consider the impact upon other species and the ecosystem as a whole.
That the CBD distinguishes sustainable use from conservation implies that the two concepts are somewhat independent. This is not in line with the contemporary understanding wherein sustainable use is part and parcel of conservation. The drafters of the CBD may have missed an opportunity to entrench the wide definition of conservation in this key international instrument. This issue was the subject of much debate during the negotiation of the CBD.[35] Reference was made to sustainable use as a separate term from conservation to emphasise the importance, particularly for developing countries, of the use of biological resources. Be that as it may, the inclusion of both terms does make provision for the application of all measures which pursue the objectives of biodiversity. The separate inclusion of the term ‘sustainable use’ stresses the importance which states attach to the use of biological resources and entrenches the permanent sovereignty of states in this regard.
It is clear from the discussion in this article that the CBD is not merely aimed at the protection and preservation of biodiversity but that the use of biological resources is of particular importance. Utilisation adheres to early nature conservation approaches which were mainly concerned with the economic and utilitarian value of wildlife.[36] In the latter context, wildlife was regarded as a resource which could be mined. To grasp the rules and principles regarding biodiversity it is also critical to investigate the underlying philosophical foundations of the approach to biodiversity. Why is biodiversity conservation important, and why does the use of biological resources need to be sustainable? The preamble to the CBD recognizes inter alia the intrinsic value of biological diversity.[37] The value of elements of the natural world may be categorised as being either instrumental, inherent or intrinsic.[38] Instrumental value lies in the utilitarian value of an object, such as fish which serve as food for humans.[39] An object will have inherent value when it possesses value in itself and not for its utility. Inherent value might be derived from aesthetic, cultural or religious considerations. Instrumental and inherent value presupposes an external evaluation. Intrinsic value is the value which entities have of themselves, for themselves. In the latter instance, the value of the object is not dependent on any external beneficiary.[40]
An examination of the locus of inherent value is complex. Bowman states that ‘from an aesthetic point of view, inherent value would appear to reside in any entity which is capable of being the subject of aesthetic appreciation’.[41] This statement gives rise to complex questions. An external beneficiary determines the inherent value of an object. This beneficiary is influenced by various subjective considerations, such as culture, age and emotional experiences. The sum total of the subjective considerations of the receptor determines the beauty of an object, and in this sense there can be no aesthetic objectivism.[42] It is, of course, probable that most of society may agree on the aesthetic appeal of a certain object. This agreement may exist at the local, national or international level. But even this form of consensus must not be viewed as evidence of aesthetic objectivism. It is merely the product of convention which may be coined in appropriate circumstances as society’s taste. Relative international consensus may especially be evident due to globalisation. Agreement on aesthetic appeal may, however, change in the course of time. This is evident from the ever-changing fashion scene where clothes which were deemed aesthetic in the 1980s may now be ridiculed. A further problem arises in relation to the nature of inherent value in that only things of agreed beauty may be deemed worthy of conservation. A plant or animal may be of vital importance to the functioning of an ecosystem, but may not conform to the threshold of agreed aesthetic appeal, and may therefore not be deemed worthy of conservation. In this regard, the focus on inherent value implicitly presupposes instrumentalism.
The utilisation of an animal for its meat or its splendour and beauty still implies that the beast is used albeit for different reasons. In the first instance, the utilisation of the animal addresses a primal need – hunger. In the second, the appreciation of the animal for its beauty serves as a vehicle to fulfil the need of man to be aesthetically pleased. In both instances the animal is used as an instrument to satisfy the health and well-being of the human being. The author therefore rejects the notion of inherent value. This is not to say that instrumental value of an object of nature may be utilised in the same manner. Aesthetic instrumentalism may be the focus of the needs of certain people, while others may be more concerned with instrumentalism in a more primary sense such as the need for nourishment.
The notion of intrinsic value is even more problematic than the issue of inherent value. The first obvious problem with this notion is that its value is independent of an external beneficiary as entities have value of themselves, for themselves. How can something have value if it is not to be assessed by an external observer, in this case a human being? The following example using monetary value could illustrate the problem. A fifty euro bill has no intrinsic value in and of itself. Rather, its value has been determined and assigned by an external beneficiary in accordance with the current monetary system. If one was to say that biodiversity must be protected for its intrinsic value, what would that mean?[43] What is the content of intrinsic value of biodiversity? An external beneficiary must again be called upon in the first place, to state that such a thing as intrinsic value exists. But in making this statement the assessor already judges the object and validates it according to a value. The author cannot accept the proposition that intrinsic value exists. In accordance with the arguments presented in this article, it is the author’s view that only instrumental value exists, albeit in different degrees of utility according to the needs which an object must satisfy. An instrumentalism approach towards biodiversity may undermine it because only objects of utility must be regarded worthy of preservation. In this article the author uses ‘functional value’ in relation to biological diversity as it better explains the value of biological diversity which entails, for instance, life support of living and non-living entities, the biological value of biodiversity[44] and the value of utility.[45]
The inconceivability of the notions of intrinsic and inherent value of biodiversity is largely because man’s influence as an external beneficiary cannot be disregarded. The notion of inherent value is implausible as the human receptor is incapable of being truly objective and the value judgement in relation to the aesthetic value made can also never be objective. Intrinsic value is non-existent as the function of an object is defined and determined only through the judgement of man. These statements evoke the notion of anthropocentricity in relation to biodiversity.
International environmental law has an anthropocentric nature.[46] This statement, however, warrants qualification as environmental law is not always as anthropocentric as it seems. This is evident from international treaties which aim to conserve species and habitat.[47] Redgwell, for instance, remarks that:
the exclusively anthropocentric approach of simply valuing the environment in terms of immediate human utility is being displaced by a more diluted anthropocentrism which recognizes the interrelatedness and interdependence of the natural world of which human beings form a part.[48]
The CBD recognizes that the value of the biosphere is integrated with the importance of conservation of the biosphere for human survival. Loss of biodiversity in nature may impact on man just as the actions of man impact on nature.[49] The anthropocentric approach evoked responses from various scholars who have advocated that nature itself should be awarded subjective rights.[50]
In a previous publication the author introduced the so-called ‘qualitative approach’ in order to escape the dichotomy of subject (man) and object (nature). A holistic approach is needed whereby the two opposites are united in a single organism. Instead of arguing for or against an anthropocentric approach, one must favour and promote ‘quality’ of the organism as the goal which needs to be achieved.[51] According to this viewpoint it is impossible to escape anthropocentrism. Anthropocentrism is inevitable even in the instance where human beings confer rights on natural objects. It is futile to engage in an approach which does not pay heed to this reality. The focus on quality reconciles the interests of both man and nature. Quality encompasses quality of life for man which requires quality of, for instance, the ecosystem of which humans are a part. The focus on quality provides one with a certain conceptual understanding of the relationship between man and the environment. The question which arises is whether the qualitative approach really addresses the criticism that sustainable development is anthropocentric and that the interests of nature may accordingly be disregarded in favour of human needs? The acknowledgement that one should focus on quality already manifests in the concept of diluted anthropocentrism. This diluted form of anthropocentrism may also be relevant for the notion of sustainable development.
To illustrate this point one may refer to the precautionary approach which is one of the well-known principles of sustainable development. This approach requires that despite absence of scientific evidence that actions may harm the environment, protective and/or prohibitory measures must be taken. The broad scope of this approach implies that various factors must be taken into account. These may extend beyond human interests to include the interests of nature.[52] This important principle or approach is indicative of the diluted anthropocentrism inherent in the ideal of sustainable development. If one also takes notice of intergenerational equity in addition to the precautionary approach sustainable development, then the line of reasoning is further strengthened as actions detrimental to nature may have negative effects on future generations. The quality of life of future generations may be diminished by a decrease in biodiversity through the actions of the present generation.
The recognition of the qualitative approach may be of importance in decision-making in issues of sustainable development. Where a decision-maker needs to balance the three elements of sustainable development; namely ecological, developmental and societal needs; the qualitative approach implies that one does not change the values which need to be balanced. Rather, it is a case where the perceptions of the adjudicator are altered to accord with reality. This resulting decision would reflect the reality which does not support the ‘fiction’ that the human component can be disregarded as the ecocentric approach propounds.
One of the presumptions on which the qualitative theory is built is that conservation and use can only be achieved from a homocentric approach and further, that alternative theories establish a fiction whereby the human adjudicator is disregarded by way of elimination. This does not reflect reality. For some commentators this presumption is unconvincing. For example, Gillespie contends that:
… non-anthropocentric theorists are not claiming that it is possible to know exactly what it is to be a non-human piece of Nature, but only that it is still possible to make certain broad assumptions about the general interests of living entities. Without this ability, a male could not be non-sexist, or a Caucasian, non-racist.[53]
Gillespie’s viewpoint is not without merit, but does this mean that the qualitative approach is incorrect? That the human component in relation to environmental protection cannot be disregarded does not imply that humans cannot make decisions which are in the broad interests of biodiversity. By way of analogy, it would of course be absurd to state that a caucasian is incapable of being non-racist. These examples do not, however, suffice to explain the complex homocentric relationship between man and the environment. Caucasians may be non-racist, but in a society in which they dominate it is most probable that they may pursue their self-interest as a group in certain circumstances.[54] This does not mean that the dominant group is unaware of the general interests of others, but rather pertains to the adjudication of interests. As such it is not a question of knowledge regarding the interest of other entities, but the issue pertains to the adjudication of interests. The examples provided by Gillespie furthermore differ from the situation between humans and nature. Objects of nature are incapable of voicing their concerns in the same way as humans. It is accordingly true that man may make certain assumptions regarding nature’s interests, but man will evaluate these interests from an anthropocentric perspective. The qualitative theory therefore attempts to ameliorate man’s self-interest to accord with a more holistic approach in which the interests of man are more in line with the requirements of biodiversity, for instance.[55]
According to the qualitative approach, biodiversity needs to be conserved and used in a sustainable fashion because of its instrumental value. Biodiversity has a qualitative instrumental value which far exceeds the total of man’s self-interest. Self-interest, in this instance, presupposes a certain interest in non-human elements because of the linkage between man and environment.
What does this have to do with the question posed at the beginning of the article regarding the culling of elephants? The mere fact that one poses this question already indicates the homocentric and instrumental approaches regarding nature. This is clear once one painstakingly investigates the problem and the reasons for the problem. Culling is viewed by states as a plausible mechanism to address the problem of overpopulation. But firstly, why and how did the problem of overpopulation originate. One may answer clearly and quite simply that a surplus of elephants at Kruger National Park are destroying vegetation, thus adversely impacting on the existence of other animals. This answer seems to be derived from pure logic. But, it is not that simple. The most probable reason for overpopulation is that a national park has been established to protect and preserve certain species, such as the African elephant. In these ‘unnatural’ natural surroundings the elephants have no natural enemies.[56] It is improbable that the overpopulation problem would ever have arisen were it not for the need to reserve space for animals to protect them from the encroaching human elements. In short, parks are established because humans have claimed land previously dominated by animals. Hence elephant overpopulation is a result of the anthropocentric instrumentalism of man.[57] The above example illustrates the absurdity of efforts to eliminate the human component, as the ecocentric approach suggests. It is furthermore of great importance to grasp the true nature and origin of the problem. To generate potentially effective solutions, the author will apply the qualitative approach. Recognising that the problem originates from reserving land for animals does not imply that protected areas should not be established and managed. This is a form of in situ conservation which constitutes a pragmatic approach to the issue of biological diversity.[58]
Needs for environmental protection challenge the structure of the international legal system which has traditionally concerned itself with the interests of state entities.[59] In this regard Bowman remarks that:
it has become common to observe that the natural environment knows no political boundaries and that the traditional regime of resource exploitation, grounded primarily in the notion of national territorial sovereignty, requires to be replaced by more overtly collectivist approaches.[60]
It is because of this notion that concepts such as ‘common heritage of mankind’[61] or ‘world heritage’[62] have been born. The CBD, however, emphasises the sovereign rights of states over biological resources while recognising that the conservation of biological diversity is a ‘common concern of humankind’.[63] Conservation of biodiversity is not merely a national affair as it is essential to sustaining all life on earth.[64] The notion that biodiversity is to be considered as a ‘common heritage of mankind’ was rejected as it was argued that many of its components were under national jurisdiction.[65] The notion of ‘common concern’ implies a common responsibility of the international community in relation to the important issue of biological diversity. In addition, the importance of the sovereignty[66] of states over their natural resources is strengthened by references to two provisions in the text. Article 3 of the CBD replicates principle 21 of the Stockholm Declaration, which affirms the rights of states to exploit their own natural resources. Furthermore article 15 of the CBD refers to the sovereign rights of states over their natural resources as the basis of the authority to determine access to genetic resources.[67] Articles 3 and 15 are reminiscent of the notion of permanent sovereignty of states over their natural resources. This is defined as the right of states to decide freely and independently on the use and exploitation of their natural resources.[68] This concept evolved during the decolonisation process and became a central issue in the debate regarding the authority of a host state to nationalize foreign companies exploiting their natural resources.[69] This concept, therefore, was initially developed to curtail colonialist interference in the economic affairs of newly independent states. The principle of permanent sovereignty has since its inception been viewed as a mechanism to overcome economic disparities and increase well-being.[70] At present, developing countries mainly use the concept to resist pressure to preserve their natural resources from overexploitation. It must be acknowledged that permanent sovereignty is not absolute. It too has the same limitations as sovereignty. The notion of sovereignty, for instance, includes the duty to respect other states’ sovereignty. Accordingly, permanent sovereignty creates a duty to respect other states’ sovereignty over their natural resources.[71] Additionally, permanent state sovereignty must be exercised for the benefit and well-being of citizens.[72] Preoccupation on independence to promote the goals of permanent sovereignty is archaic. It impedes the achievement of the objectives of permanent sovereignty, such as the promotion of the well-being of citizens. Permanent sovereignty requires more than mere independence and non-intervention: it requires co-operation.[73] Perrez is therefore of the view that:
today it is clear that economic, social and ecological problems almost never conform to often artificial boundaries of states … and that the earth has therefore to be understood as an interdependent physical, bio-chemical … global system. Thus, it becomes increasingly artificial and difficult if not impossible and dangerous to departmentalize the biosphere of humans …[74]
It is interesting to reflect on what extent the emphasis on state sovereignty could be balanced against the notion of common concern because sovereignty is not absolute and the common concern notion further erodes the notion of sovereignty. States, in the exercise of sovereignty, must pay heed to biodiversity conservation and use biological resources in a sustainable manner. The text of the CBD does not clearly address the relationship between the notions of common concern and sovereignty. The notion of common concern indicates that biodiversity is the responsibility of, and is of concern and interest to, all states. No state may therefore autonomously take actions which may be detrimental to biodiversity. The inclusion of the notion of common concern in the CBD must be understood in the context of the evolution which permanent sovereignty has undergone in recent years. A modern understanding of sovereignty must acknowledge the importance of co-operation and interdependence in accordance with global reality, and should not focus on the fiction of absolute independence.[75] How does this relate to the issue of biodiversity? Global resources are not equitably allocated in the world.[76] The developing countries, in comparison to the developed, have a richer biodiversity, whilst developed countries are richer in financial resources.[77] This phenomenon is also clear in the present casus where South Africa is home to rich wildlife which includes the African elephant. The mere fact that a developing country may be blessed with biodiversity may inter alia be a ‘geographical accident’.[78] Glennon has hence argued that certain resources should be regarded as global environmental resources which create an expectation by all states that these should be protected.[79] States are therefore likened to trustees responsible for protecting the resources. Breach of this obligation by a state results in an injury to all the other states since the obligation is to the whole community. Glennon furthermore states that a global environmental obligation exists which refers to the duty of states ‘to share in preserving global environmental resources’.[80] He makes a distinction between custodial obligations, the obligations of the location state to preserve the resources; and support obligations, the duty of other states to contribute to the custodial obligations of states.[81] Financial support could either be of a multilateral nature through the establishment of international funds or unilaterally through ‘debt-swap’ or ‘debt through nature’ agreements, whereby lenders to developing countries forego all or a portion of a debt repayment in return for the implementation of environmental protection measures by the developing country.
It is the submission of the author that the inclusion of the notion of ‘common concern’ in the CBD underscores the notion that biological resources may be regarded as a global common resource since they are found in different territories, but are pivotal to the whole world community. The notion of sovereignty, and more specifically permanent sovereignty does, furthermore, not reflect the reality of the biosphere as an organism which is oblivious of borders created by man. The earth functions as a single organism and the destruction of biodiversity in one state will have an impact on the whole international community. What does this mean in relation to the concept of sovereignty? It is evident from the discussion of sovereignty and permanent sovereignty that these concepts are not absolute and have evolved in accordance with the changing times. It is in this context that the author is accordingly of the opinion that the notion of permanent sovereignty is an outdated concept which does not answer to the existing challenges of an ever increasing interdependent world. The author therefore proposes that it is more appropriate to refer to ‘custodial sovereignty’ in relation to the issue of biodiversity.[82] This notion entails that a state is the trustee of its global environmental resources, and that other states have an expectation that the relevant state will protect these resources. Other states are burdened with the duty to support the custodial state to fulfil its obligations. The custodial state is still entitled to exploit its resources in accordance with its (permanent) sovereignty, but the latter is restricted by the expectations of other states. The sovereignty of the custodial state further enables it to deter unwanted aggression by other states regarding its resources.
Various questions arise in relation to the introduction of the concept of custodial sovereignty. What are the practical implications of accepting this approach? It is evident that international law has not yet recognised this concept. The notion of permanent sovereignty is still of paramount importance.[83] However, it is not wholly inconceivable that a marriage of the two notions of permanent sovereignty, as it is understood today, and common concern (especially in relation to biodiversity) may result in the acceptance of custodial sovereignty.[84] It is arguable that the latter reflects the more realistic approach needed to address modern challenges. In the next paragraph the author will attempt to examine certain possible implications of the introduction of custodial sovereignty.[85]
The dilemma of the overpopulation of elephants is a result of the anthropocentric instrumental approach to regulating the environment. The elephants were placed in a national park to make room for the developments of human beings in the natural habitat of the animals. The parks were developed to ensure the preservation and protection of elephants mainly for aesthetic (instrumental) purposes. Recognising this phenomenon should not lead one to turn back the clock and return to the days of early cave-man. It is, however, important to understand the origin of the problem so as to find solutions.
One must approach the dilemma from a qualitative approach. The notion of biodiversity must guide the adjudicator in making the relevant decisions. It is especially in this regard that the meaning and definition of sustainable use may be of importance. The CBD defines the latter in relation to intergenerational and intragenerational equity.[86] Conservation and use of biodiversity must furthermore be aimed not only at the preservation of one or two species, but it must promote the diversity of species and ecosystems as provided for in the CBD. With regard to the current dilemma, it is evident that the status quo in relation to the protection and preservation of the elephant in South Africa might lead to the extinction of various other species, and therefore diminish biodiversity contrary to article 2 of the CBD. The objectives of the CBD would therefore be frustrated. The qualitative approach also suggests that the status quo cannot be maintained because the quality of the organism, as such, is threatened by the excessive elephant population. In terms of the CBD, in-situ conservation focuses on the ecosystem as a whole and not only the protection of certain species. This approach implies that the elephant is reduced to one of the components of the ecosystem. The ecosystem approach implies that the conservation of megafauna is not per se more important than the conservation of other species.[87] This approach may serve as a very important reason to take action to address the overpopulation of the African elephant. But does the ecosystem approach prescribe culling as a solution? It is the submission of the author that this is not necessarily the case. The ecosystem approach implies that action needs to be taken to protect the biodiversity of the entire ecosystem. This does not automatically mean that culling is the solution.
The adjudicator who approaches the dilemma in accordance with the qualitative approach, and is guided by the notion of biodiversity is clearly faced with a ‘catch-22’ – problem because the protection of one specie (the African elephant) may lead to the extinction of other species (for instance antelope). In this instance, the adjudicator does not directly weigh the interests of human beings against those of the environment. The interests of species and the relevant ecosystem are in conflict in the present situation. That there is a problem, however, presupposes the triumph of human interests since animals were placed in parks to provide for human development. The extinction of certain species of antelope might furthermore be contradictory to the aesthetic instrumentalism that a diversity of species provides to man. The qualitative approach further suggests that one should refrain from viewing the matter in accordance with the notion of object and subject. It is not a question whether action should be taken to address the issue of overpopulation as the qualitative approach and the notion of biodiversity gives guidance to this issue. But what should be done?
Evaluating the four possible solutions which are proposed to address overpopulation of elephants in the Kruger National Park indicates the lack of real alternatives. Relocation of elephants might not be a viable solution since other parks may, similarly, have too many elephants.[88] Contraception may prove impractical for its prohibitive costs to South Africa.[89] But to view the dilemma from the perspective of the notion of proposed custodial sovereignty may offer viable alternatives. Accepting the view that the notion of permanent sovereignty has been altered in accordance with changes in international environmental law may have certain implications for the issue of elephant culling.[90] Custodial sovereignty implies that South Africa is a trustee of its global environmental resources, such as the elephant. Other states have an expectation that South Africa must conserve this resource. Their expectation implies the existence of a duty to support South Africa in its undertaking to conserve elephants. In the present casus, the conservation was so successful that the current elephant population threatens the existence of other animals. In accordance with their duty of support in terms of custodial sovereignty, the author suggests that developed countries in particular could channel funds for the relocation and contraception of animals where possible. The funding can be provided through various mechanisms such as debt-swaps[91]
or bilateral agreements.[92] Relevant provisions in the CBD relating to financial resources and mechanisms may also be of relevance.[93] According to article 21(1) of the CBD, developed countries[94] must provide ‘new and additional financial resources’ to allow developing countries[95] to meet the ‘agreed full incremental costs’[96] from implementing and benefiting from the CBD.[97] In this regard, one may argue that the management of species, such as elephants in casu, fall under article 6 of the CBD which refers to the preparation or adaptation of national strategies, plans or programmes to reflect the measures set out in the CBD.[98] Article 21(1) of the CBD establishes the financial mechanism to make funds available to developing countries on a grant or concessional basis.[99] Article 39 designates the Global Environmental Facility (GEF) as the interim institutional structure for the period between the entry into force of the CBD and the first meeting of the Conference of the Parties.[100] Presently, the GEF is still the relevant financial mechanism for the CBD.[101]
It is possible that despite acting on the above proposals there might still be a surplus of elephants which needs to be dealt with since contraception is more orientated towards curbing future populations. Funds for costly relocation of elephants might address the current overpopulation to a great extent, but it is also not unthinkable that not all elephants might be relocated within South Africa. Where practical, elephants may even be relocated to neighbouring countries. Transfrontier parks might also be an additional measure to address overpopulation of elephants.[102]
The establishment of transfrontier parks will restore the integrity of the ecosystem which was artificially carved up by colonial borders. This would open up the migratory routes of African elephants. Transfrontier parks reflect the notion of custodial sovereignty.
In relation to the present casus, SANParks should not merely rely on the option of culling which is a quick-fix for the inadequate management and planning of authorities who should have taken proactive steps to ensure a manageable elephant population in the Kruger National Park. SANParks should investigate all possible measures in the context of the proposals relating to the qualitative approach and the (financial) consequences of custodial sovereignty. It is important that developed countries honour their obligations to assist in the conservation and sustainable use of biological resources. The CBD might serve as a valuable instrument to practically facilitate the enforcement of custodial sovereignty to ensure the co-operation of all states to meet the objective of ensuring the conservation of the biological diversity of the world.
This article investigates whether states should make use of culling as a measure to address the adverse effects arising from overpopulation of animal species. In this regard the author focuses on the objective of biodiversity as included in the Convention on Biological Diversity (CBD) to provide guidance to this complex question. It is the submission of the author that the inclusion of the notion of ‘common concern’ in the CBD underscores the notion that biological resources may be regarded as a global common resource. The author therefore proposes that it is more appropriate to refer to ‘custodial sovereignty’ in relation to the issue of biodiversity. This notion entails that a state is the trustee of its global environmental resources, and that other states have an expectation that the relevant state will protect these resources. Other states are also burdened with the (financial) duty to support the custodial state to fulfil its obligations. This may assist developing states to find alternatives to animal culling.
[*] BA cum laude LLB (PU for CHE), D JUR (University of Leyden), Associate Professor in Law at the Potchefstroom Campus of the North-West University. I would like to thank Professor J Verschuuren (University of Tilburg, Netherlands) for his valuable comments on a previous draft of this article. Any errors remain the sole responsibility of the author.
[1] This issue will be discussed in greater detail in a subsequent article. Reference may be made to section 67 of the Flora and Fauna Act which enables gedeputeerde staten (provinces) in the Netherlands to designate persons to curb the threshold of a certain species. This designation may only be allowed if there is no other satisfactory solution. The measures may be taken if one of the following grounds is applicable. It is in the interest of public health and safety; in the interest of air-traffic safety; it prevents important damage to crops, livestock, forests, fishing industry and the water, or prevents damage to fauna and flora. Other requirements must be met. Subsection 2 states the province may invoke the measures in subsection 1 only if the favourable position of the species is unharmed. Flevoland has, for instance, promulgated a decision whereby a category of persons were designated to hunt or capture foxes (Vulpes vulpes). See Gedeputeerde Staten van Flevoland, Besluit Aanwijzing Vos Ex Artikel 67 Flora- en Faunawet van 17 juni 2003.
[2] Ed Stoddard ‘SA Rangers Mull Pros and Cons of Culling’ <http://www.lawlibrary.co.za/
notice/earthairandwater/2005/2005_03_30.htm> (Copy on file with author).
[3] Since the moratorium, the elephant population has increased from approximately 7 000 to nearly 12 000.
[4] Elephants eat an estimated 170-kilogram of vegetation a day. See Michael J Glennon, ‘Has International Law Failed the Elephant?’ (1990) 84 American Journal of International Law 1, 1ff.
[5] Stoddard, above n 2.
[6] Clearly the South African National Parks (SANParks) must make a difficult albeit important decision because the excess number of elephants may adversely impact on Kruger National Park’s biodiversity. Should SANParks decide to cull, the public may be outraged largely because they regard elephant’s behaviour to be ‘human-like’. Elephants are tactile, have a sense of death and communicate with low-frequency calls. See Glennon, above n 4, 1-2.
[7] Convention on Biological Diversity opened for signature 5 June 1992 (entered into force 29 December 1993).
[8] Opinions differ as to whether the concept of biodiversity is a principle or an objective. International environmental law principles differ. Some are deemed to be ‘hard law’, others are ‘emerging’ and others are ‘aspirational’. See, for instance, Ved P Nanda and George Pring, International Environmental Law & Policy for the 21st Century (2003) 17. The CBD seems to regard the notion more as an objective. See Timon A Oudenaarden, ‘Biodiversiteit in het Natuurbeschermingsrecht’ (2000) 27 Milieu & Recht 144, 144. The South African National Environmental Management Biodiversity Act No 10 of 2004, promulgated to give effect to the South African ratification of the CBD aims to manage and conserve biological diversity and sustainable use of indigenous biological resources. See section 2 of this Act. Section 7 of this Act reads that its application must be guided by the principles in section 2 of the National Environmental Management Act No 107 of 1998 (NEMA). The objective of biodiversity is for the purpose of this discussion important because it is aimed at inter alia conservation and sustainable use. It is, however, not unthinkable that the notion of biodiversity may in time be regarded as an important principle of international environmental law. Biodiversity may even progress to the status of customary international law. To establish whether a rule can be recognized as customary international law, the requirements of opinio juris sive necessitatis and usus would have to be met. The existence of usus can be found in a variety of materials, such as treaties, the decisions of national and international courts, national legislation, diplomatic correspondence, policy statements by government officers, opinions of national law advisers, comments by states on draft reports of the International Law Commission, and resolutions of the political organs of the United Nations. See John Dugard, International Law: A South African Perspective (2000) 27. See for an extensive discussion pertaining to developments in this field: Anthea E Roberts, ‘Traditional and Modern Approaches To Customary International Law: A Reconciliation’ (2001) 95 American Journal of International Law 757-791. It is not, for the purposes of this article, important to answer this question since the objective of biodiversity is entrenched in the CBD which has been widely signed and ratified by states. About [ ] or less 188 states are signatories to the CBD. For a list of states, see: <http://www.biodiv.org/world/parties.asp
> (Copy on file with author). NEMA includes the notion as a principle in section 2. Section 2(4)(a)(i) of NEMA reads: ‘that the disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied.’ Section 2 of NEMA establishes national environmental principles, which inter alia ‘serve as guidelines by reference to which any organ of state must exercise any function taking any decision in terms of this Act or any statutory provision concerning the protection of the environment.’ See section 2(1)(c). In terms of section 2(1)(e) these principles furthermore ‘guide the interpretation, administration and implementation of this Act, and any other law concerned with the protection or management of the environment’. The principles in section 2 play a pivotal role towards the pursuit of the ideal of sustainable development in South Africa. See Werner Scholtz, ‘The Anthropocentric Approach to Sustainable Development in NEMA and the Constitution’ (2005) 1 TSAR 69-85.
[9] Patricia W Birnie and Allan E Boyle, International Law and the Environment (2nd ed, 2002) 545.
[10] See P Van Heijnsbergen, ‘Biodiversity and International Law’ (1991) 45 International Spectator 681, 682 ff; Philippe Sands, Principles of International Environmental Law (2003) 499 and Jan Glazewski, Environmental Law in South Africa (2000) 343. Glazewski states that: ‘to sum up, biodiversity can be described as all living organisms, including fauna and flora and the habit in which they live’. Birnie and Boyle are of the opinion that biodiversity is the ‘variability of life in all its forms, levels and combinations’. They are of the opinion that biodiversity is not the sum of all ecosystems, species and genetic materials. Birnie and Boyle, above n 9, 548. In terms of article 2 of the CBD, biological diversity ‘means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems’.
[11] This amounts to 109 species a day. Sands refers to an estimate of species and habitat loss that at the current rate would destroy up to 15 percent of the earth’s species over the next twenty-five years. This will lead to a loss of twenty to seventy-five species per day being condemned by 2040. See Sands, above n 10, 500. According to the Millennium Ecosystem Assessment Report human activities are a leading cause of loss in biodiversity. The report states that: ‘over the past few hundred years, humans have increased species extinction rates by as much as 1,000 times background rates that were typical over Earth’s history’. Report of the Millennium Ecosystem Assessment Ecosystems and Human Well-Being Biodiversity Synthesis <http://www.millenniumassessment.org/en/index.aspx> (Copy on file with author). Lomborg, however, indicates that the issue of extinction is seriously overstated which conflicts with ‘observation and careful modelling’. He is of the opinion that: ‘ … losing 25-100 percent of all species would be a catastrophe … However, losing 0.7 percent per 50 years over a limited time span is not a catastrophe but a problem.’ Bjørn Lomborg, The Skeptical Environmentalist Measuring the Real State of the World (2001) 249-257.
[12] Biological resources are the tangible biotic components of ecosystems. Article 2 of the CBD states that biological resources ‘includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity.’ Examples of biological resources are real entities, such as maize, elephants, elephant tusks or fish. In contrast, biodiversity is not the sum of ecosystems, species and genetic material but rather the variability within and among them. Biodiversity is an attribute to life. Lyle Glowka et al, A Guide to the Convention on Biological Diversity (Environmental Policy and Law Paper No 30 IUCN Environmental Law Centre, Bonn, Germany) 15.
[13] Sands, above n 10, 500. See also in this regard the Report of the Millennium Ecosystem Assessment, above note 11, 5ff.
[14] The Stockholm Conference on the Human Environment took place in 1972 where the important Stockholm Declaration was adopted. See especially principles 2, 3, 4 and 7 thereof.
[15] The World Charter for Nature of 1982, expressed in the form of a Resolution and adopted by the majority of the General Assembly contained important principles pertaining to biodiversity. Another example is the Report of the World Commission on Environment and Development of 1987 (the Brundtland Report) of which principle 3 is of particular importance. Agenda 21 contains various chapters relating to biological diversity. Chapter 15, for instance, deals with the conservation of biological diversity. Chapter 15.3 states that: ‘biological resources constitute a capital asset with great potential for yielding sustainable benefits. Urgent and decisive action is needed to conserve and maintain genes, species and ecosystems, with a view to the sustainable management and use of biological resources.’
[16] Nature conservation is more restrictive than biodiversity because the first deals more with specific endangered fauna and flora or protected areas. See, for instance, Oudenaarden, above n 8, 148.
[17] Article 1 of the CBD. For the origin and history of the CBD: See Glowka et al, above n 12, 2ff.
[18] Article 2 of the Convention defines ‘in-situ conservation’ as ‘the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties. Ex-situ conservation ‘means the conservation of components of biological diversity outside their natural habitats’. This relates to conservation in zoos, botanic gardens, aquaria and gene banks.
[19] Article 8(d), for instance, states that each Contracting Party shall: ‘promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings.’ The preamble accordingly also reads that: ‘noting further that the fundamental requirement for the conservation of biological diversity is the in-situ conservation of ecosystems ... ’
[20] Article 2 defines only in-situ and ex-situ conservation.
[21] Article 2.
[22] Birnie and Boyle, above n 9, 603. In terms of the Oxford English Dictionary the ordinary meaning of conservation is ‘preservation or restoration of the natural environment and wildlife’. It also refers to the ‘careful use of a resource’. The ordinary meaning of conservation accordingly includes use.
[23] See the preamble and article II(1).
[24] See for instance article IV(1).
[25] Article 1(1)(b).
[26] See article I(1)(c) read with (d). Conservation status will be unfavourable when the following conditions are not met: ‘(1) population dynamics data indicate that the migratory species is maintaining itself on a long-term basis as a viable component of its ecosystems; (2) the range of the migratory species is neither currently being reduced, nor is likely to be reduced, on a long-term basis; (3) there is, and will be in the foreseeable future sufficient habitat to maintain the population of the migratory species on a long-term basis; and (4) the distribution and abundance of the migratory species approach historic coverage and levels to the extent that potentially suitable ecosystems exist and to the extent consistent with wise wildlife management’.
[27] Birnie and Boyle, above n 9, 550.
[28] See article 2. This convention has never been widely ratified. It was the objective of this convention to establish a general regime for the conservation and rational exploitation of high seas living resources. The convention has been superseded by the United Nations Convention on the Law of the Sea, opened for signature 10 December 1982 (entered into force 16 November 1994) (UNCLOS), although it remains in force for those States, which are not party to UNCLOS. UNCLOS does not repeat the definition in article 2, but articles 116-120 deal with conservation and management of living resources of the high seas.
[29] See also Glazewski, above n 10, 467ff. Alternative strategies have included maintaining an optimum population (OP), or optimum (or maximum) economic yield (OEY/MEY) or optimum ecological resource management (OERM). All of these strategies relate to sustainable use. It seems that these concepts also lead to various problematic questions.
[30] See Sands, above n 10, 559ff and William Edeson, ‘Sustainable Use of Marine Living Resources’ (2003) 63 ZaöRV 355-375.
[31] Birnie and Boyle, above n 9, 553-554.
[32] Birnie and Boyle, above n 9, 551.
[33] Sam Johnston, ‘Sustainability, Biodiversity and International Law’ in Michael Bowman and Catherine Redgewell (eds), International Law and the Conservation of Biological Diversity (1996) 51-69, 51ff.
[34] Ibid 52.
[35] Glowka et al, above n 12, 4.
[36] See for instance Michael Bowman, ‘The Nature, Development and Philosophical Foundations of the Biodiversity Concept in International Law’ in Bowman and Redgewell, above n 53, 5-49. 15. This utilitarian approach was followed by the notion that strict protection against utilisation is a prerequisite for effective conservation. The CBD rather views sustainable use as an incentive for conservation. Nele Matz, ‘Protected Areas in International Nature Conservation Law: Can States Obtain Compensation for Establishment?’ (2003) 63 ZaöRV 693, 699.
[37] The preamble of the Convention on the Conservation of European Wildlife and Natural Habitats, opened for signature 19 September 1979 (entered into force 6 June 1982) (Berne Convention) also refers to the intrinsic value of species.
[38] Bowman, above n 36, 14ff.
[39] The Earth Charter of 2000 at the very least, recognizes the inherent value of living things. Principle 1 states that ‘life has value regardless of its worth to human beings’.
[40] See, for instance, Glennon, above n 4, 7.
[41] Bowman, above n 36, 21.
[42] This is illustrated by the outrage of Gary’s Waïtarai which proclaims: ‘Meat! It was the oldest, the most true and sincere, and the most universal aspiration of humanity …To the black man (the elephant) always meant merely meat … The idea of the ‘beauty’ of the elephant, of the ‘nobility’ of the elephant, was the idea of a man who had enough to eat, a man of restaurants and of two meals a day and of museums of abstract art – an idea typical of a decadent society.’ See Glennon, above n 4, 7.
[43] This implies that the biosphere has a functional value in its operation independent of what humans think. See Simone Bilderbeek, Biodiversity and International Law (1992) 32.
[44] This refers to evolutional, ecological and genetic value. This is recognized by the preamble of the CBD as it states that: ‘the importance of biological diversity for evolution and for maintaining life sustaining systems in the biosphere’. A wide pool of diversity is important as it keeps evolutionary options open which can curtail inbreeding and extinction. Diversity amongst living organisms enhances their capacity to adapt to variations in the physical sphere of the biosphere. See Glowka et al, above n 12, 9.
[45] This refers to the economic, scientific, educative, recreational, aesthetic, cultural and social value. See Ester van der Voet et al, Biodiversiteit als Beleidsconcept (1996). The CBD is: ‘conscious of the … ecological, genetic, social, economic, scientific, educational, recreational and aesthetic values of biological diversity and its components’.
[46] See Jonathan Verschuuren, Principles of Environmental Law The Ideal of Sustainable Development and the Role of Principles of International, European and National Environmental Law (2003) 43-49. This is reflected through principle 1 of the Rio Declaration on Environment and Development (Rio Declaration), which states that human beings are at the centre of concerns for sustainable development. See Report of the United Nations Conference on Environment and Development, 1992, UN Doc A/CONF 151/26. This declaration is mostly regarded as soft law, but has some important implications. The Rio Declaration is of further importance because it serves as a basis for the development of the concept of sustainable development and its application in international and national environmental law. See, for instance, Piet Gilhuis and Jonathan Verschuuren, De Nederlandse Milieuwetgeving Getoetst aan de Verklaring van Rio de Janeiro en Agenda 21 (1993) 5. Two treaties were, for instance, open for signature at the United Nations Conference on Environment and Development (UNCED) which took place in 1992: the CBD and the United Nations Framework Convention on Climate Change, opened for signature 5 June 1992.
[47] Catherine Redgwell, ‘Life, The Universe and Everything: A Critique of Anthropocentric Rights’ in Allan E Boyle and Michael R Anderson (eds), Human Rights Approaches to Environmental Protection (1996) 71, 71. These treaties even pre-date the Rio conference. Examples are the Convention on Wetlands of International Importance especially as Waterfowl Habitat, opened for signature 2 February 1971 (entered into force 21 December 1975) (Ramsar Convention) and the Berne Convention. A change in wildlife law has taken place where a value was once attributed to wildlife in terms of their usefulness to humans, to an appreciation of the role that the species play in the ecosystem and accordingly the need to preserve these species.
[48] Redgwell, above n 47, 73.
[49] It is interesting to reflect on the views of traditional Hawaiians because they view plants and animals as sentient ancestral forms that interrelate with them as family. This is in stark contrast with the views of the Western world. Michael K Dudley, ‘Traditional Native Hawaiian Environmental Philosophy’ in Lawrence S Hamilton (ed), Ethics, Religion and Biodiversity: Relations between Conservation and Cultural Values (1993) 176-182, 181.
[50] Stone’s is perhaps one of the most famous contributions to this debate. Christopher D Stone, Should Trees have Standing? and other Essays on Law, Morals and the Environment (1996) 1-47. The argument that rights must be extended to nature is based on the assumption that a guardian must be appointed to enforce these rights. In support of this argument, Stone refers to the appointment of a guardian by the court for a human being that has become de jure incompetent. See also Klaus Bosselmann, ‘Eigene Rechte für die Natur? Ansätze einer ökologischen Rechtsauffassung’ (1986) 19 Kritische Justiz 1-22 and Andrew Brennan, ‘The Moral Standing of Natural Objects’ in Andrew Brennan (ed), The Ethics of the Environment (1995) 35-56. Awarding rights to animals would in casu lead to interesting questions: how should one, for instance, weigh the right of elephants to food against the right of other animals to access enough food for their sustenance in the instance where the overpopulation of elephants implies that other animals will lack nourishment? What about the rights of the trees not to be overexploited and depleted by other animals?
[51] See Scholtz, above n 8.
[52] Verschuuren, above n 46, 46.
[53] Alexander Gillespie, International Environmental Law, Policy and Ethics (1997) 155.
[54] Nietzsche argued that justice is power and power seeks self-preservation. Friedrich Nietschze, Human, All too Human (1978) 9.
[55] The qualitative theory may result in components of Nature, which are perceived to have no utilitarian value in relation to the quality of humans, not being preserved.
[56] Except for man, African elephants do not have any enemies. See Glennon, above n 4, 1ff. Protected areas, such as national parks and nature reserves, are a good example of in-situ conservation provided for in article 8 of the CBD which states that: ‘each Contracting Party shall, as far as possible and as appropriate: (a) Establish a system of protected areas … (b) Develop where necessary, guidelines for the selection, establishment and management of protected areas …’
[57] Animals are mostly conserved for their aesthetic value. See in this regard Gillespie, above n 53, 84.
[58] The establishment of protected areas is, of course, of little use where pollution from external sources is to such an extent that it extinguishes the efforts made through the creation of the areas. Bilderbeek, above n 43, 61.
[59] Bowman, above n 33, 12.
[60] Bowman, above n 33, 12.
[61] This notion can be found in various international instruments such as: the Declaration of Principles governing the Seabed and the Ocean-floor, and the Subsoil thereof, beyond the Limits of National Jurisdiction of 17 December 1970; the Agreement governing the Activities of States on the Moon and other Celestial Bodies, open for signature 5 December 1979 (entered into force 11 July 1984) and the UNCLOS. This notion applies to areas outside the national jurisdiction of states.
[62] This notion originates from the Convention concerning the Protection of World Cultural and Natural Heritage, open for signature 16 November 1972 (entered into force 17 December 1975). This notion applies to sites within the territories of signatory states. The preamble, for instance, considers ‘that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole.’
[63] Preamble to the CBD.
[64] See Glowka et al, above n 12, 10. The preamble to the CBD refers to ‘the importance of biological diversity for evolution and for maintaining life sustaining systems in the biosphere’.
[65] Ibid 3.
[66] Sovereignty requires that a distinction is made between two elements: the state vested with rights and obligations on the one hand, and the state which is a sovereign creator of law in the international public law arena on the other hand. Hennie A Strydom, ‘Enkele Aspekte van die Soewereiniteitsvraag in die Volkereg’ (1989) 14 Journal for Juridical Science 36, 20.
[67] The CBD is the first international instrument which expressly affirms the sovereign rights of states over their genetic resources.
[68] Franz X Perrez, Cooperative Sovereignty: From Independence to Interdependence in the Structure of International Environmental Law (2000) 69ff. Resolution 1803, for instance, affirms the right of states to permanent sovereignty over natural resources, but in addition, requires that permanent sovereignty has to be exercised in the interest of the people and subject to general international law. See Resolution on Permanent Sovereignty over Natural Resources, GA Res 1803 (1962). The Earth Charter of 2000 supports this idea as principle 2 states that ‘with the right to own, manage and use natural resources, comes the duty to prevent environmental harm and to protect the rights of the people.’ See also Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (1997) 120ff.
[69] Interference of developed states in this regard is branded as ‘eco-imperialism’. John H Jackson, The Jurisprudence of GATT & The WTO (2000) 431ff.
[70] See Perrez, above n 68, 95.
[71] See Perrez, above n 68, 99. This obligation accordingly also entails that states should not use their natural resources to such an extent as to cause transboundary harm. See Principle 21 of the Stockholm Declaration.
[72] Ibid 105. Perrez refers to Article 1(2) of the International Covenant on Civil and Political Rights, GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 (1966) and the International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI), 21 UNGAOR Supp (No 16) 49, UN Doc A/6316 (1966) which reads that ‘all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence’.
[73] Perrez, above n 68, 109.
[74] Perrez, above n 68, 135.
[75] The focus is on the positive obligations. This statement does, however, not imply that states have no independence. States must still be able to invoke sovereignty where another may for instance want to exploit its natural resources in a manner of unwanted aggression.
[76] Glennon, above n 4, 28.
[77] World Resources Institute <http://www.ciesin.org/docs/002-616/002-616.html> (Copy on file with author).
[78] Glennon, above n 4, 28.
[79] Glennon, above n 4, 34. A global environmental resource is described as a ‘natural resource located within the territory of one country, but broadly enjoyed and arguably needed, by the world community as a whole.’ The elephant is regarded as such a resource. A global environmental right arises in relation to a global environmental resource which creates the expectation that the resource will be protected.
[80] Ibid 35.
[81] Financial assistance pertaining to the elephant refers to the compensation for forgoing the sale of ivory of elephants which die naturally and the confiscation of ivory, as well as costs of the measures of conservation.
[82] Although permanent sovereignty is a recognized principle of international law, it does not seem to have jus cogens status. This implies that the notion of permanent sovereignty can evolve. Schrijver, above n 68, 377.
[83] Custodial sovereignty may become a norm of international law if it is accepted as customary international law which alters the notion of permanent sovereignty. See Dugard, above n 8, 24ff for the requirements of international customary law.
[84] The author’s proposal should not be confused with proposals to revive some kind of trusteeship in order to improve domestic governance. In terms of the latter proposal a state would lose its sovereignty. This resembles colonialism. See Stephen D Krasner, ‘The Hole in the Whole: Sovereignty, Shared Sovereignty, And International Law’ (2003-2004) 25 Michigan Journal of International Law 1075, 1090.
[85] It is not possible to provide an extensive investigation of all of the consequences of the concept of ‘custodial sovereignty’. This article will focus more on the effect of this notion in relation to the present casus. A subsequent article will investigate the concept in further detail and will also focus on the broader implications of the author’s proposal.
[86] Intergenerational equity requires each generation to use and develop its natural and cultural heritage in such a manner that it can be passed on to the next generation in no worse condition than when it was received. Intergenerational equity accordingly entails two concepts. The present residents of the earth hold the earth in trust for future generations and are simultaneously entitled to reap its benefits. Intragenerational equity aims to address inequity within the existing economic system. The CBD is concerned with intragenerational equity. Article 15(7) of the CBD establishes a framework under which developing countries are entitled to fair and equitable sharing of the benefits arising from the use of genetic resources found in their territory. Edith Brown Weiss, ‘Our Rights and Obligations to Future Generations for the Environment’ (1990) 84 American Journal of International Law 198, 199. See also Wilfred Beckerman, ‘Intergenerational Equity and the Environment’ (1997) 5 Journal of Political Philosophy 392 and Birnie and Boyle, above n 9, 91-92.
[87] Humans mostly value megfauna more than other species. The African elephant serves as an excellent example. The culling of this animal would invoke more response than the destruction of insects. This highlights the utilitarian anthropocentric approach that humans have in relation to nature. In terms of the ecosystem approach, certain species are not more valuable than others due to their aesthetic appeal.
[88] Stoddard, above n 2.
[89] For contraception to work in the Kruger National Park, the South African National Parks would need to introduce contraception to 4000 sexually active females. Stoddard, above n 2.
[90] The author’s statement does not imply that the notion of custodial sovereignty has been accepted. Rather it serves as a proposed replacement of the outdated notion of permanent sovereignty. This line of reasoning reflects current reality since the interpretation of sovereignty as included in section 2(7) of the Charter of the United Nations has also undergone certain changes. See, for instance, W Michael Reisman, ‘Editorial comments: NATO’s Kosovo intervention: Kosovo’s Antinomies’ (1999) 93 American Journal of International Law 860.
[91] See Matz, above n 36, 714ff and Lincoln C W Wee, ‘Debt-for-Nature Swaps, A Reassessment of their Significance in International Environmental Law’ (1994) 6 Journal of Environmental Law 57-72. In terms of this proposal the debt of a country is exchanged for local currency instruments which relates to an environmental project. These projects are mostly based on bilateral agreements which involve non-governmental organisations and are accordingly not governed by international law. Matz is, however, of the opinion that ‘this approach could serve as a model for future financial mechanisms in international biodiversity conservation’. See paragraph 11(f) of Decision VI/16 of the Conference of Parties of the CBD which requests the Executive secretary to: ‘compile information concerning the impacts of external debts on the conservation and sustainable use of biodiversity, and examine the possibility of utilizing debt for nature initiatives for supporting the implementation of the Convention on Biological Diversity’. Financial Resources and Mechanism decisions of the Conference of Parties can be found on <http://www.biodiv.org/financial/decisions.asp
> (Copy on file with author).
[92] According to article 20(3) of the CBD, developed countries may provide financial resources through bilateral, regional and other multilateral channels which are related to the implementation of the Convention.
[93] Articles 20, 21 and 39 of the CBD.
[94] Annex II of Decision I/2 of the Conference of the Parties of the CBD includes a list of developed countries.
[95] It must further be noted that article 21 makes provision for other Parties, such as those with economies in transition, to voluntary assume the financial obligations of the developed countries.
[96] Article 20(2) reads that the full incremental costs to be covered in each case must be agreed upon between the developing country and the institutional structure designated by the Conference of the Parties. An agreement will be based on policy, strategy and programme policies as well as eligibility criteria and an indicative list of incremental costs established by the Conference of the Parties.
[97] New and additional financial resources mean funds other than those mentioned in article 20(3).
[98] An elephant management plan may resort under these plans. The implementation of the management plan, such as measures to curb overpopulation may be viewed as the programmes. The latter measures form part of the overall national biodiversity strategy. See Glowka et al, above n 44, 29ff in relation to the distinction between strategies, plans and programmes.
[99] This implies that funds could be given or lent at less than market rates. See ibid 106.
[100] The GEF is a joint project of the World Bank, United Nations Environment Programme (UNEP) and United Nations Development Programme (UNDP). The GEF is to provide ‘new and additional grants and concessional funding to meet the agreed incremental costs of measures to achieve agreed global environmental benefits’ regarding: climate change, biodiversity loss, international waters, land degradation, ozone depletion and persistent organic pollutants. See Paragraphs 2 and 3 of the GEF Instrument. The agreed incremental costs concerning chemicals management where they relate to the focal areas shall also be eligible for funding as well as those activities that have been agreed upon by the GEF Council. The GEF is the designated financial mechanism for three conventions: the United Nations Framework Convention on Climate Change of 1992; the Biodiversity Convention of 1992; and the Stockholm Convention on Persistent Organic Pollutants of 2001. See Paragraph 6 of the Instrument for the Establishment of the Restructured Global Environment Facility of 19 June 2003. The GEF also serves as a financial mechanism for the Kyoto Protocol, opened for signature 11 December 1997 (entered into force 15 February 2005) and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, opened for signature 29 January 2000 (entered into force 11 September 2003) (Cartagena Protocol). See Stephen A Silard, ‘The Global Environment Facility: A New Development in International Law and Organization’ (1995) 28 Geo Wash J Int’l & Econ 607-654. The GEF also deals with the notion of incremental costs. The GEF compares domestic benefits and costs as well as global environmental benefits of proposed measures. The concept of incremental cost has proven to be too difficult to apply in the field of biodiversity and the incremental cost has accordingly been measured to be the total cost of the project. GEF has created the Program for Measuring Incremental Costs for the Environment in order to solve the technical issues with the concept. See Glowka et al, above n 12, 104. The Conference of Parties provides additional guidance to the GEF in the provision of financial resources in terms of Article 20 and 21 in terms of Decision VI/17 which inter alia reads that ‘the Global Environment Facility as the institutional structure operating the financial mechanism should provide financial resources ... for the elaboration, development, and revision as necessary, of national biodiversity strategies and action plans, and for activities which assist their implementation consistent with guidance to the Global Environment Facility from the Conference of the Parties’.
[101] In accordance with Decision I/2 of the Conference of Parties the GEF shall remain the institutional structure to operate the financial mechanism. Annex I of this decision contains ‘policy, strategy, programme priorities and eligibility criteria for access to and utilization of financial resources’. Paragraph 4 contains a list of priority programmes which may be of interest in relation to the present casus. Subparagrah 4(a) refers to: ‘projects and programmes that have national priority status and that fulfil the obligations of the Convention’; while subparagraph (b) refers to ‘development of integrated national strategies, plans or programmes for the conservation of biological diversity and sustainable use of its components in accordance with article 6 of the Convention’. Subsections (c) and (d) may also be of importance as they relate to: ‘strengthening conservation, management and sustainable use of ecosystems and habitats identified by national Governments in accordance with article 7 of the Convention;’ and the ‘identification and monitoring of wild and domesticated biodiversity components, in particular those under threat, and implementation of measures for their conservation and sustainable use’. The management of elephants may easily be covered by one of the programmes. In terms of Decision III/8 the Conference of Parties adopted a Memorandum of Understanding regarding the role of the GEF.
[102] This approach is also future-orientated. Co-operating countries may also have surplus animals, which renders the solution incapable of addressing the present problem. At present it seems that the following countries are experiencing elephant overpopulation: Namibia, Zimbabwe, Tanzania, Mozambique and Zambia. This measure, may accordingly, not address the problem on its own, but may be implemented in combination with other measures. An example of a transfrontier park is the Great Limpopo Transfrontier Park which was officially launched between South Africa, Mozambique and Zimbabwe in December 2002. The Great Limpopo Transfrontier Park may serve as a model for the 21 parks planned in Africa. See <http://www.sanparks.org/conservation/transfrontier/
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