Transcript Has International Law Failed the Elephant?

JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
A Taylor & Francis/Routledge Publication
www.jiwlp.com
EDITOR-IN-CHIEF: William C.G. Burns
ASSOCIATE EDITOR: Geoffrey Wandesforde-Smith
Notes on Publishing Pieces with a
Law and Policy Perspective
Geoffrey Wandesforde-Smith, Emeritus Professor and Director
Environment Program, UC Center Sacramento
Wildlife Conservation, Law, and Policy Seminar Geography Graduate Group, UC Davis, Winter 2007.
1Paul Haverkamp and Margaret Swisher, Coordinators.
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Publishing is a contextual act
JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
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EDITOR-IN-CHIEF: Professor William C.G. Burns
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Part of the context is established by “ideas in
good currency,” in this case in “conservation
biology,” very broadly understood
Part is set by editors and reviewers, acting
as gatekeepers for quality
Part is set by prospective readers and the
value they find in what authors have to say
Much the most important part is set by the
author(s), with fresh ideas and information to
communicate
JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
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EDITOR-IN-CHIEF: Professor William C.G. Burns
ASSOCIATE EDITOR: Professor Geoffrey Wandesforde-Smith
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1. What’s the conservation biology context?
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New programs in conservation biology, like traditional
biology and wildlife programs, do not adequately prepare
students for success in the non-academic world (Noss
1997, Clark 2001).
The kinds of knowledge, problem-solving approaches,
and outlook that academically trained professionals bring
to this difficult and important work do not square with the
reality that conservation problems are social and
economic, not scientific, yet biologists have traditionally
been expected to solve them. (Clark 1994, Schaller
1992).
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J.A. Clark, The Endangered Species Act: its history, provisions, and effectiveness, 19-43 in ENDANGERED
SPECIES RECOVERY: FINDING THE LESSONS, IMPROVING THE PROCESS (T.W. Clark, R.P. Reading,
& A.L. Clarke, eds., 1994)
T.W. Clark, Developing policy-oriented curricula for conservation biology: Professional and leadership
education in the public interest. 15 Conservation Biology 31 (2001).
Noss, R.F. 1997. The failure of universities to produce conservation biologists. 11 Conservation Biology
1267 (1997).
G.B. Schaller, Field of dreams. Wildlife Conservation (September/October, 1992) at 44.
JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
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EDITOR-IN-CHIEF: Professor William C.G. Burns
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1. Conservation biology context (cont.)
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Noss, a former President of the Society of Conservation
Biology and former editor of the journal Conservation
Biology, also asserted that: “with few exceptions,
universities fail to train graduate students for problemsolving outside academia.”
Foremost among his suggestions for improvement was
that university curricula develop rigorous interdisciplinary
programs and courses that encourage student familiarity
with applicable state and federal environmental laws and
policies.
In addition, he suggested that universities require
coursework sufficient for students to understand the
philosophical underpinnings, value dimensions, and
historical context of science.
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1. Conservation biology context (cont.)
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Wow! That’s a tall order!
Obviously, both the critics and everyone else associated
with conservation biology education want graduate
students to succeed as scientists and to make a
difference in the world
Equally obviously, the completion of a master’s thesis or
doctoral dissertation equips people with the skill sets they
need to be credentialed as a “conservation biologist” in
the academic world
So, if a student wants to become credentialed in the
academic world and make a difference in the real world,
what is he or she to do? More years of study in law and
policy and philosophy and values and history and………?
JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
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EDITOR-IN-CHIEF: Professor William C.G. Burns
ASSOCIATE EDITOR: Professor Geoffrey Wandesforde-Smith
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JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
A Taylor & Francis/Routledge Publication
www.jiwlp.com
EDITOR-IN-CHIEF: Professor William C.G. Burns
ASSOCIATE EDITOR: Professor Geoffrey Wandesforde-Smith
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1. Conservation biology context (cont.)
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One way to demonstrate the relevance in the
real world of a research project primarily meant
to satisfy the requirements of the academic
world – without spending X additional years as
a student -- is to publish something about the
project in a law and policy journal
Reprints are highly valuable assets
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They can be shared
They show seriousness of purpose
They demonstrate writing skills
They are a sign of professionalism
JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
A Taylor & Francis/Routledge Publication
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EDITOR-IN-CHIEF: Professor William C.G. Burns
ASSOCIATE EDITOR: Professor Geoffrey Wandesforde-Smith
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1. Conservation biology context (cont.)
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Publishing is not everyone’s cup of tea.
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Assuming you want to
proceed…….questions arise
What are wildlife law and policy journals
publishing?
Which journals do this sort of thing?
And what exactly would be involved in
developing a publication out of a
thesis/dissertation project or a manuscript
you have tucked away in a drawer?
JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
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EDITOR-IN-CHIEF: Professor William C.G. Burns
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2. The law and policy context
International Regimes
(top down)
The Market
(e.g. certification
and labeling)
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The State
Communities
(bottom up)
JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
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EDITOR-IN-CHIEF: Professor William C.G. Burns
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2.A. The view from the state
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If wildlife conservation requires legislation, and
subsequently regulation (of how hunters
behave, say) and management (of critical
species and habitats), then it requires the
exercise of state sovereignty
The evolution of the state’s role (federal and
state in the U.S.) in wildlife conservation has
received a lot of scholarly attention.
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2.A. Some landmark texts
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Michael Bean & Melanie Rowland, THE EVOLUTION OF
NATIONAL WILDLIFE LAW, 3d ed. (1997)
Thomas Lund, AMERICAN WILDLIFE LAW (1980)
Thomas Dunlap, SAVING AMERICA’S WILDLIFE:
ECOLOGY AND THE AMERICAN MIND, 1850-1990 (1988)
Dale Goble & Eric Freyfogle, WILDLIFE LAW (2002)
John Nagle & J.B. Ruhl, THE LAW OF BIODIVERSITY AND
ECOSYSTEM MANAGEMENT (2002)
The wildlife and biodiversity conservation chapters of
general environmental law texts, such as Thomas
Schoenbaum, Ronald Rosenberg & Holly Doremus,
ENVIRONMENTAL POLICY LAW, 4th ed. (2002)
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2.A. The story told by the texts
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Increasing state intervention, beginning with the
Progressive Era and the rise of conservation “science”
[1890s-1920s]
Increasing unhappiness over the first half of the twentieth
century with the “capture” of state wildlife agencies by
consumption interests (hunters, sports fishermen,
commercial fishermen) [1930s-1960s]
Increasing assertion of “federal jurisdiction” to protect
species and to assert existence values, subsequent to the
emergence of ecology as a management science [1970s1980s]
Increasing reaction to the costs of biodiversity conservation
and ecosystem management, especially by property owners
Increasing interest in “new forms of governance” for wildlife
conservation (planning, stewardship, partnership,
certification/labeling)
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2.B The state view outside the U.S.
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Single state focus: landmark texts
• Rosaleen Duffy, KILLING FOR CONSERVATION:
WILDLIFE POLICY IN ZIMBABWE (2000)
• William Beinart, THE RISE OF CONSERVATION
IN SOUTH AFRICA: SETTLERS, LIVESTOCK,
AND THE ENVIRONMENT 1770-1950 (2003)
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2.B. The state view outside the U.S. (cont.)
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Comparative state focus: some landmark texts
• Thomas Dunlap, NATURE AND THE ENGLISH
DIASPORA: ENVIRONMENT AND HISTORY IN
THE UNITED STATES, CANADA, AUSTRALIA,
AND NEW ZEALAND (1999)
• Clark Gibson, POLITICIANS AND POACHERS:
THE POLITICAL ECONOMY OF WILDLIFE
POLICY IN AFRICA (1999). [Zambia, Kenya,
Zimbabwe]
• James Fairhead & Melissa Leach, SCIENCE,
SOCIETY AND POWER: ENVIRONMENTAL
KNOWLEDGE AND POLICY IN WEST AFRICA
AND THE CARIBBEAN (2003). [Guinea and
Trinidad]
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2.B.The story told outside the U.S.
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The exercise of state sovereignty for wildlife
conservation outside the U.S. has some similarities to
the story in the U.S.
• Most notably, consistent evidence of domestic law and
policy being shaped by science and scientists
• Similarly consistent evidence of domestic law and policy
being shaped by international environmental NGOs
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World Conservation Union (IUCN)
World Wide Fund for Nature (WWF)
Wildlife Conservation Society
Fauna and Flora International
International Fund for Animal Welfare
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2.B.The story told outside the U.S. (cont.)
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There are also significant differences, however, especially in
developing countries
• State capacity is sapped by lack of resources
(economic and social capital) and corruption. State
formulation of laws and policies is, therefore, difficult.
Implementation is even more difficult.
• Domestic civil society and public opinion are weak to
non-existent policy drivers and usually eclipsed by
international NGOs, usually closely allied with the
scientific community, and aid agencies
• Since WSSD (Johannesburg 2002), equity,
distributional, and indigenous peoples issues have
become impossible to ignore.
• State weakness has not been bolstered by the
imposition of “neoliberal conditionalities”
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3. The international law view
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The notion that wildlife and biodiversity
conservation can be most effectively
addressed through international law, while it
has some history, is more recent than the
turn to action at the level of the state
{Note parenthetically that under international
regimes implementation remains primarily a
state responsibility}
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3. Some landmark texts
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Simon Lyster, INTERNATIONAL WILDLIFE LAW (1985,
1993)
• ICRW (1931, 1946), Seals & Polar Bears, Birds, Vicuna
• Western Hemisphere Convention (1942), African
Convention (1900, 1933, 1968), European Convention
on Wildlife and Habitats (Berne 1979), Antarctic Marine
Living Resources (1980)
• Wetlands (Ramsar 1971), World Heritage (1972),
CITES (1973), Migratory Species (1979)
• N.B. the date of the UN Conference on the Human
Environment, Stockholm 1972, and the Earth Summit in
Rio de Janeiro 1992
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3. Some landmark texts (cont.)
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David Hunter, James Salzman & Durwood Zaelke,
INTERNATIONAL ENVIRONMENTAL LAW AND POLICY,
2d ed. (2002) [new edition late 2006]
Philippe Sands, PRINCIPLES OF INTERNATIONAL
ENVIRONMENTAL LAW, 2d ed. (2003)
• “Biodiversity Conservation” has come to encompass
both species and habitats
• Traditional focus on charismatic megafauna clearly
extended to other animals and plants
• Centerpiece Treaty: Convention on Biological Diversity
(1992), to which the U.S. is not a party
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3. The international story
JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
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International law was much favored as an instrument
for wildlife conservation in the late 1960s and early
1970s
This was a period when the political mobilization of
environmentalists in the U.S. spilled over into the
international arena and carried with it the same deep
faith in the efficacy of law as an instrument of
environmental change that was evident in the “great
age” of American environmental law making
Much of the momentum at the international level had
been lost, however, when the Earth Summit convened
in Rio de Janeiro, 1992.
Why?
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3. The international story (cont.)
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Increasingly forceful advocacy of countervailing interests in
development
The recognition and assertion of state “incapacity”
A general desire, stimulated by the Rio Earth Summit, for
laws and policies that advance “sustainability” coupled with
an inability to operationalize the concept, which stymied the
World Summit on Sustainable Development (WSSD) in
Johannesburg in 2002
A lack of MEA articulation and coordination
Complexity of cross-cutting issues: Traditional knowledge
and intellectual property; International Trade; Gender;
Invasive species.
Increasing interest in “new forms of governance” for
wildlife/biodiversity conservation (planning, stewardship,
partnership, certification/labeling)
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4. The view from the market
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Application of market-like thinking to wildlife
and biodiversity conservation is relatively
recent
• Signaled by: Michael J. Glennon, Has
International Law Failed the Elephant? 84 AM. J.
INT’L LAW 1-43 (1990)
• Landmark text: Benjamin Cashore, Graeme Auld
& Deanna Newsom, GOVERNING THROUGH
MARKETS: FOREST CERTIFICATION AND THE
EMERGENCE OF NON-STATE AUTHORITY
(2004)
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4. The view from the market (cont.)
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Has at least two principal themes
The certification and labeling of goods as a
signal to markets that the associated
production, distribution, and consumption
processes are “sustainable”
• Forest Stewardship Council, Marine Stewardship
Council, wine and grapes, organic foods, coffee,
biofuels, green buildings, sports industries
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The “pricing” of ecosystem services as a
signal to decision makers that they need no
longer (as they have in the past) treat the
environment as a free good
• See www.ecosystemmarketplace.com and
www.ecosystemservicesproject.org
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4. The view from the market (cont.)
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The development of certification and labeling is much
further along than markets for ecosystem services
Indeed, “Emerging governance systems are
overrunning several classical divisions of regulation,
and indeed of law – between states, firms, and the
public, and between national and international
domains.” (Meidinger 2006)
“Conventionally labeled as ‘self-governance’ because
they are organized around global product chains, the
programs also incorporate a growing variety of noneconomic interests [multiple stakeholders] from
around the world in policy making and implementation
and often compete with each other within economic
sectors.” (Ibid.)
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4. The view from the market (cont.)
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Even as certification and labeling gain support there are
serious issues to be resolved (Adapted from ibid.)
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Effectiveness (whose problems are being solved?)
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• Evidence that multi-interest self-governance systems are effectuating
behavioral change grows steadily stronger, but it does not follow that
they are ‘solving’ the problems they seek to address.
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Accountability (what if voluntarism fails?)
• Perhaps multi-interest self-governance systems are evolving
accountability based on learning and adaptability, and will somehow
answer to a newly emerging transnational citizenry…while effectively
addressing problems. Or it may turn out that skeptics are correct; the
new systems effectively answer to no one, or only to already privileged
social interests.
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Legitimacy (who elected these people, anyway?)
• Multi-interest self-governance systems rely heavily on mimicking wellestablished institutions – primarily those of standard setting and
certification and the best practices of government regulatory institutions.
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5. The view from the community level
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Bypass in this presentation
Except to say (1) that in the domestic context in
advanced economies, while many, vigorous local
initiatives are evident, they may have “nowhere to go,”
in a hostile national political climate (e.g. the U.S.)
And (2) that the bloom is off the rose of CommunityBased Natural Resources Management (CBNRM),
and its many acronymic variants, in the context of
developing countries
• See Arielle Levine & Geoffrey Wandesforde-Smith, Wildlife,
Markets, States, and Communities in Africa: Looking Beyond
the Invisible Hand, 7 JIWLP 135, at 140-142 (2004)
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JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
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From the perspective of at least one editor, then, the leading
law and policy questions conservation biology research
ought to tackle are (a) those that promise to build state
capacity and (b) those that evaluate market mechanisms as
“substitutes” for state initiatives.
International Regimes
(top down)
The Market
(e.g. certification
and labeling)
The State
Communities
(bottom up)
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JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
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EDITOR-IN-CHIEF: Professor William C.G. Burns
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Given the validity or at least
plausibility of the preceding analysis,
how do the seminar presentations
stack up?
Remarkably well!
 Take some examples (both seen and heard)
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• Mulder
• Giles
• Swarner
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Melding of research methodology and
political process sensibilities
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Mulder
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On the face of it, a remarkable opportunity to
contribute to our understanding of how the
methodology of certification evolves and the
process of extending it to a new commercial
sector, namely wildlife-based sports industries
Could a way be found to focus an article (the
research will clearly yield more than one) on the
legitimacy of certification – why from the
perspective of the Tanzanian public interest is it
better to certify than to regulate?
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Giles
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A dazzling display of how the ingenious
development of research methodology has the
potential to transform the process by which the
(alarming) intrusiveness of the “marine mammal
watching industry” is regulated (not)
However, no data presented on actual
regulation in the U.S./Canada, say, or New
Zealand. So, could the focus be on the
methodology, with a short suggestion of how it
might be applied?
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Swarner
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An impressive showing of how field research
and survey methodologies can be combined to
rethink and re-evaluate the process by which
compensation is implemented to control wild
dog predation
But where’s the history – the recognition that
controlling predation by dogs on livestock has a
long history in southern Africa? And could the
impact of this new research be enhanced by
linking it to that earlier work?
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William Beinart, The Night of the Jackal, ch. 6 in THE RISE OF
CONSERVATION IN SOUTH AFRICA (2003)
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The Mulder, Giles, and Swarner
examples point to the desirability and
feasibility of a special issue of JIWLP
the title of which might be
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“Paving the Road for Good Intentions
in Biodiversity Conservation:
Innovative Research Methodology
and Policy Process Reform”
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The publication process
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EDITOR-IN-CHIEF: Professor William C.G. Burns
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Form an editorial committee, May ’07
Agree on clear article focus, June ’07
Clean draft manuscripts, Sept. ’07
Editorial committee and peer review,
complete by Dec. ‘07
Clean manuscripts upload, Feb. ’08
Proofs available, April ’08
Issue appears as 11(3) JIWLP 2008 by
about Sept. ’08
Identify additional articles/issues, Ongoing
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34
JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY
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EDITOR-IN-CHIEF: Professor William C.G. Burns
ASSOCIATE EDITOR: Professor Geoffrey Wandesforde-Smith