Protected Species

• Author: Andrew Long
• Pages: 189-216

CHAPTER 12

Protected Species

ANDREW LONG

I. Introduction

This chapter alerts practitioners to relevant international environmental law

concerning species protection and explains the evolution of international

species protection law. Species protection is among the oldest goals of inter-

national environmental law, and remains among the most significant chal-

lenges within the field. Since early efforts to resolve economically motivated

conflicts over allocation of rights to harvest species, such as the Pacific fur

seal arbitration case, species protection law has evolved into the leading

edge of the broader field of “biodiversity law.” Thus, species protection law

embodies both the oldest and the most cutting-edge elements of interna-

tional environmental law.

Biodiversity preservation is also among the most pressing and challeng-

ing policy issues encompassed in the field.1 “Biodiversity” can be defined as

“the variability among living organisms from all sources . . . this includes

diversity within species, between species and of ecosystems.”2 This diversity

of life is essential to sustaining the well-being of humanity, but human activ-

ities have created severe pressures on species that result in an ongoing

extinction crisis. Unlike ozone protection or climate change, which result

from emissions that are essentially fungible throughout the world, species

extinction results from a vast array of forces, many of which are closely tied

to national or local circumstances. Yet international law and policy is neces-

sary to address the threat because of the global significance of biodiversity,

the low regulatory capacity of many highly biodiverse nations, and global

market incentives that tend to undermine species protection. Thus, although

the aggregate value of global biodiversity makes its protection a high inter-

national priority, achieving better species protection on the ground will often

require improving local or regional regulation, enforcement, and economic

incentives. Therefore, international species protection law (like much of

international environmental law) seeks to address a global problem by pro-

moting or requiring national and subnational regulatory measures.

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In addition, legal efforts to achieve more effective preservation of biodi-

versity (of which species protection is an integral part) at the global scale

must necessarily affect an extensive array of human activities in virtually

every sector. Agricultural practices, legal and illegal trade, industrial pollu-

tion, greenhouse gas emissions and climate change, poverty, and national

governance failures are some of the more significant causes of biodiversity

loss. The challenges involved with regulating the harmful effects of such a

diverse array of causal factors are complex. The international legal instru-

ments and institutions in this area are well developed. But they are far from

effective in solving the problem of biodiversity loss. They also appear para-

doxical: ad hoc, yet including several complex and interrelated regimes;

extensive, yet with gaping policy holes that remain underregulated or virtu-

ally untouched. Thus, practitioners need to have a firm grasp on the larger

context of species protection law when handling a matter implicating this

area to avoid overlooking potentially important legal requirements and to

maximize opportunities for participation in relevant programs that may pro-

vide significant opportunities for reputational or economic benefit.

II. Biodiversity Loss and International Regulation

A. The Extinction Crisis: Natural and Policy

Complexity of Biodiversity Loss

The issues that species protection law seeks to address involve some of the

world’s most complex natural and human systems. Species are interdepen-

dently connected in ecosystems that produce a wide variety of goods and

services underlying most economic and social activity. Over a decade ago,

the annual economic value of ecosystem services was estimated at $33 tril-

lion.3 As high as this figure is, it arguably does not even begin to capture the

importance of ecosystem services to humanity. Ecosystem services underlie

the building blocks of human society, such as clean water, productive soil,

and a stable climate. These essential elements of human well-being arise nat-

urally and, apparently, for free.4 One well-known illustration of how policy-

makers can draw upon ecosystem services to benefit humanity is New York

City’s decision to purchase development rights in the Lower Hudson Valley

in order to ensure a safe and clean drinking water supply.5 This decision was

reached after conducting a cost-benefit comparison with the alternative of

constructing water treatment facilities. In that instance, the value of ecosys-

tem services became clear to policymakers. Unfortunately, it is far more com-

mon for the value of ecosystem services to go unrecognized by decision

makers until the loss of such services causes negative impacts.

Although ecosystem services are “free” in the sense that they are public

goods, the real cost of ensuring their sustainability lies in the challenge of

preserving biodiversity. Biodiversity promotes resilience of natural systems,

which is the essential characteristic necessary for continual “healthy” func-

tioning of these systems over time and in the face of significant stressors

such as pollution, land development for human habitation and agriculture,

190 INTERNATIONAL ENVIRONMENTAL LAW