Law and international conservation

“Around the world, countries have introduced laws and policies designed to prevent species extinction. And while there have been some success stories, overall, these approaches are routinely failing. Extinction rates continue to climb”. Those words belong to Katie Woolaston, from Queensland University of Technology’s School of Law. And, as she explains to Chris Smith, she’s been looking at why, from a legal perspective, we're in the middle of an extinction crisis, despite international efforts to curtail biodiversity loss…

Katie - We know that a lot of the mechanisms that we use in law and policy to protect nature and to protect species and biodiversity do not work. And we know that because we continue to lose species, our extinction rates are higher than ever. So if we have so many different types of laws and policies that are aimed at conserving species and minimising extinction rates, why do we have still these huge extinction rates?

Chris - Is it just that law always tries to catch up in the sense that people do things and then we legislate and regulate around them? And because this is a moving train and you are catching up, you are always seeing the situation after the fact, to a certain extent?

Katie - Yeah, definitely. Law is very reactive and that is definitely a problem when it comes to environmental conservation, but it's not the only problem. There's a lot of issues that have been discussed by many people as to why law is ineffective in conserving species, the legal system that we have to deal with species protection is really complex. You know, we don't just have one piece of law that says we need to protect all of the species and all of the habitat. We have multiple types of laws, and then we have laws about development that impact on those species. And we have laws about trade that impact on those species. And all of these kind of complex array or network of laws all factor into how biodiversity is treated by people. Another really big issue is that in many Western systems, the law is based on the concept of sustainable development. And when decision-makers are making decisions about what laws should be implemented or made to protect species, they're often dealing with a conflict of values. So we have protection of environment and protection of biodiversity on one hand, and on the other hand, we'll have economic development or protection of property right, or employment rate that will often conflict with the environmental perspective; and, usually, the environment loses out in those types of situations. And the final really big problem is that there's just not enough resources. So even though we have laws, there's inadequate resources to kind of implement, monitor, and enforce those laws. And so a lot of the time they're ineffective for that reason.

Chris - Have we also got something of a fragmented legal landscape internationally? Because different laws have different settings, different priorities, different levels of enforcement in different countries, and also most of the laws that that we tend to consider tend to be in western jurisdictions, and that's not necessarily where all the biodiversity is, so there's a disconnect there...

Katie - International law in an environmental space is not compulsory. A lot of people think international law is just law and countries have to abide by it, but that's not actually how it works. Countries opt into international law, so they will sign on to a treaty, for example, and then they'll implement that treaty at the national level. What international law and the goals in international law do is kind of create pressure to implement environmental laws at the national level. And you're completely right, a lot of the biodiversity hotspots are in less developed countries that don't have the capacity to implement effective laws. But, in other ways, those countries are doing a lot better with, you know, leading the way with things like giving legal rights to nature, for example, that a lot of western countries haven't grasped yet.

Chris - It sounds to me from what you're saying, the tension here is that the human population is rising. We know that. I mean, in the last two decades we've added about 30% more humans to the planet, each of them with, with a carbon footprint and the slice of the world surface that they like to call their own. What can we do then to make sure that that tension is better addressed? Where we don't just say, well, we've got to keep growing the planet, we've got to keep growing economies and nature keeps paying the price. How do we reverse that equation?

Katie - Yeah, you raise a really good point, and one of the things talked about a lot is that concept of de-growth, which is really looking at stopping our focus on economic growth to the detriment of everything else. And that's one thing that perhaps needs to be focused on, but from a legal perspective, there are a lot of good ideas floating around. Unfortunately, part of implementing those good ideas really involves removing the politics from lawmaking, which is problematic because politicians make laws. So having politicians give up their discretion to prioritsze certain things over the environment is, is going to be difficult. But there are a number of ways that we can do that. And one of the really big pushes at the moment is mainstreaming. So this is when a particular issue in, in our case, biodiversity, kind of becomes a core consideration of government, and that's legislated for. So all of the government processes and systems are kind of redesigned and reorganized from the perspective of addressing that issue. The other thing is to really make sure that the decisions that are being made are transparent and independent, because when we have transparent decisions, they can be independently verified and reviewed. And if a politician, or a minister or a government makes a poor decision in terms of protecting the environment, we need to be able to review that decision. And so providing laws that, you know, allow independent authorities to have a say in decisions or review decisions increases the transparency of that decision, but also reduces the risk of ministerial discretion and increases evidence-based decision-making.