LEGAL ISSUES IN THE DEVELOPMENT OF TRANS-FRONTIER CONSERVATION
By
Tomme Rosanne Young
Senior Legal officer, environmental law Centre-IUCN Germany
In
recent years, we have been witness to an increasing interest of
ecosystem conservation beyond national boundaries. The approach
that is known as transboundary protected areas is increasingly
gaining ground worldwide. Through the article below, Tomme Young,
a lawyer, specialised in environmental law issues analyses the
legal issues sparked off by this “niche”. She
also draws up an inventory of the issue, brings out current trends
in handling these problems and legal mechanisms set up to “convoluted”
the complexity of the process resulting in the development of
these kinds of areas.
The concept of creating protected areas that span the boundary
between countries (sometimes called “trans-frontier conservation
areas” or TFCA (1))
is not new – such areas have existed in some regions for
many decades. In recent years, however, we have been witness to
an increase in international interest in, and support for, the
creation of TFCA, as part of the international focus on “conservation
at the landscape scale” – the realisation that ecosystems
do not end at the national boundary, and recognition of the fact
that consistency in management of ecosystems and species must
therefore include co-operation between countries.
In
theory, this is both an obvious and a practical approach to globally
meet recognised objectives of conservation, and sustainable use
of ecosystems and species. In practice, however, trans-frontier
conservation has proven very difficult. Recently, a few TFCA (transfrontier
conservation areas) agreements have been negotiated and finalised,
but the expenditure of time and money was more than the cost of
broader implementation of the two protected areas separately.
And in many instances, the extent of these “successes”
has been limited. In the end, the long negotiations have, in most
cases, resulted in agreements that authorise only a limited level
of co-operation. Virtually none have resulted in the removal of
fences or other barriers (physical or legal) dividing the area.
Need
for new approaches
This lack of resounding success does not alter the importance
of transboundary conservation and “landscape-scale”
approaches to ecosystem conservation, sustainable use, and management.
It should, however, encourage reconsideration of the methods and
tools being used, in light of the goals that we hope to attain.
Unfortunately, it is relatively obvious that the legal component
of the creation of TFCAs (Transfrontier Conservation Areas) has,
up to now, been the primary reason that the process is lengthy,
time consuming and expensive. It has also resulted in bilateral/multilateral
documents that are unwieldy, inflexible, and generally so limited
as to provide very little benefit to conservation and sustainable
use objectives. Given the extreme slowness and limited value of
these negotiations, coupled with the very high costs, there appear
to be only two alternatives for the future of TFCAs – either
find alternatives to the current legal approach, or stop attempting
to develop TFCAs at all. Clearly, in a world situation which allocates
decreasing levels of support for conservation and sustainable
use, an activity that costs so much and provides so little benefit
should not be consuming scarce financial resources.
It should be remembered that law (including legislation, contracts
and international agreements) is only a box of “tools”
that can be used toward achievement of particular aims. One chooses
the particular legal tool based on what those aims are, and what
obstacles, limitations or restrictions exist that must be recognised
and addressed. It is not possible or appropriate to find a “one-size-fits-all”
solution to any type of legal issue. However, there are often
common legal approaches and legal philosophies that usually form
the starting point for addressing particular kinds of problem.
In the case of TFCAs (Transfrontier Conservation
Areas), the basic approaches and philosophies that have been used
up to now appear to be inherently flawed. It is necessary to reconsider
them, by looking first at the objectives that TFCAs are intended
to achieve.
In general, proponents of TFCAs (2)
include the following as objectives and reasons underlying their
support to the implementation of the TFCA concept:
- Encouraging a “landscape-scale” approach to conservation
– where national borders do not prevent or hinder achievement
of conservation/sustainable-use objectives;
- Engendering cross-border consistency or complementarity, with
regard to the objectives, authorities, activities, and limitations
applied in the Protected Area;
- Fostering collaboration (or at least active communication) between
management agencies and decision-makers;
- Lowering (sharing) costs of protected area creation, implementation
and management, thereby improving the chance that appropriate
protections will be put in place on both sides of the border;
- Sharing the demands and requirements (for capacity, equipment,
infrastructure, etc.)
- Improving the net of enforcement relating to protected areas,
including enforcement of PA-related laws, the apprehension of
violators who use protected areas at national borders as avenues
for escaping into neighbouring countries;
- Establishing or applying EIA mechanisms that address cross-border
impacts, and provide for access to information and participation
regarding those impacts.
Current Legal Approaches
Up to now, in planning the strategy for developing TFCAs, the
most common first step has been to begin talks between the governments
of the countries involved, eventually leading to the negotiation
of a “TFCA Agreement” between these countries.
Unfortunately, this “first step” has been a primary
reason behind the lack of positive results from most TFCA initiatives
undertaken up to now. This is because this type of inter-governmental
negotiations is extremely costly and difficult.
Moreover, an “agreement” of this type between two
sovereign governments (or even between two provinces within the
same country) generally has a very binding and unbending character.
It is, in essence an enforceable contract between the countries.
This means that the countries must be very careful in negotiations.
Where, as in a TFCA, they are agreeing to undertake something
they have never tried before, they are often unwilling to agree
to any firm or definite provisions, particularly to provisions
about dropping borderline fences through the protected area or
commitments regarding joint management or the rights of one country
or its people with regard to actions in another country.
As a result, the costs of negotiation of a TFCA Agreement are
very large. Often much larger than the costs of needed infrastructure,
management or staffing at several domestic protected areas within
the participating countries. In addition, the time involved in
completing the basic agreement may be so long that the problems
the TFCA was supposed to address have increased greatly by the
time the Agreement is signed. Worst of all, when the agreement
is finally signed, it may be so carefully written, that it does
not commit either country to any of the needed actions.
Finding New Approaches
The
failure of existing legal approaches, however, is not fatal to
the TBPA (Transboundary Protected Areas) concept. Increasingly,
proponents of new TBPAs are looking at other legal mechanisms
and finding that they offer many possibilities as “first
steps” that enable prompt cost-effective collaboration to
address specific problems.
Instead of a formal TFCA Agreement, there are many more flexible
and less expensive legal options including –
- A “joint arrangement” (Memorandum of Understanding
or other informal document) for collaboration in (or discussion
of) cross-border protected area management
- A “joint arrangement” for enforcement
- An agreement or protocol regarding EIA (Environmental Impact
Assessment) and notice to (possibly participation by) people and
institutions across the border, prior to action affecting Protected
Areas on or near the shared border.
- Development of a bilateral/intra-regional “network”
linking key Protected Areas
- A public/private contract or Joint Venture, involving protected
areas across a common border.
Any of these offers several advantages:
- First, Unlike a TBPA (Transboundary Protected Areas), agreement,
which must be negotiated at the highest levels of government,
these less formal mechanisms may often be negotiated by the management
of the protected areas. This means that the legal “first
step” can be shorter and more time and money can quickly
be funnelled into jointly addressing important shared problems.
- Second, because they are less formal mechanisms, they can be
more “flexible” in approach. In essence, they take
advantage of the current mutual desire to collaborate in improving
some aspect(s) of specific protected areas. The parties may begin
by agreeing to a limited set of actions, such as agreeing to an
annual meeting between protected area managers, prior to finalisation
of annual management plans. However, the agreement and co-operation
may evolve quickly, as the collaboration’s effectiveness
is seen. In addition, where some aspect isn’t working, the
parties can adjust it through the same flexible mechanism.
- These agreements can go into effect more quickly, and can have
more immediate impact on the most critical and urgent needs.
- There is no need for the initial agreement to address all of
the potential issues relating to the TFCA – rather the parties
can agree to collaboration on an initial set of issues, and over
the future years, can address other issues in stages – possibly
in more Memorandum of Understanding or other informal arrangements.
In time, the parties will be ready to negotiate a more formal
instrument, but this process may be much easier and less costly
at that point, because they will have joint experience with working
together, a clearer knowledge of the issues, and a better understanding
of the points on which they have, over time, developed a real
consensus. The ultimate agreement may therefore be broader, more
binding, and less likely to need further revision, when it is
finally agreed.
(1) There are many terms that are
sometimes used to describe cross-border conservation. “TFCA”
appears to be the term most commonly used in West Africa.
(2)
Several key donors have pledged support specifically directed
at the development of transboundary protected areas.
