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download this issue paper as a pdf (1004 KB)
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Although there is no international designation or convention that sets up transboundary protected areas (TBPAs), there are many types of law that can play a role in their establishment and management:
- International Law:
Binding agreements like Multilateral Environmental Agreements, treaties, and "international customary law" (accepted practices recognised by international tribunals), plus voluntary agreements.
- Negotiated Law:
Bilateral and multilateral agreements (such as those establishing TBPAs) are like contracts-parties agree to provisions which become enforceable.
- National Policy, Law and Regulations:
Can help to create a TBPA but integrating different national legal, administrative and judicial structures can be difficult.
- Sub-national Law and Regulations:
Conservation responsibilities are often decentralised so that negotiations are undertaken by provinces or states, particularly in federated systems.
- Local law and custom (traditional law):
Devolution of
authority for protected areas has can extend to a very local level
(e.g. Municipalities or villages).
How International Law can help create transboundary protected areas
International law does not offer a template for resolving transboundary protected area questions, nor (as some people think) should it be considered a barrier, but can help set agreed objectives and mandates, which are generally not intended to be automatically binding law. Parties to international agreements have made high level decisions and are obliged to meet commitments by passing national law. Relevant agreements include:
- World Heritage Convention and Ramsar Convention:
Primarily designed around designation of special protected areas ("World Heritage Sites" and "Wetlands of International Importance"). Party countries propose sites and if designated, are obligated to protect them.
- Convention on Biological Diversity (CBD):
Promotes conservation, sustainable use and equitable sharing of genetic resources, which includes creation and management of protected areas, with a mandate for collaborative arrangements between countries.
- United Nations Convention on the Law of the Sea (UNCLOS):
Promotes natural resource management in oceans, including those outside or extending across national boundaries. Its use to support development of transboundary and high-seas Marine Protected Areas may constitute an important legal precedent that may apply on land.
- Convention on International Trade in Endangered Species:
Imposes mandatory requirements for laws relating to species trade including across borders.
- Convention on Migratory Species:
Acts mainly through habitat protection including outside national jurisdiction, often using new international mechanisms (e.g. Memoranda of Understanding and joint action plans).
- Framework Convention on Climate Change:
Offers incentives for the restoration of forests and grassland.
- Convention to Combat Desertification:
Focuses on sustainable land uses.
- World Trade Organisation:
Agreements may also have
impacts on conservation.
International Institutions and regional agreements
Institutions and programmes, including IUCN's World Commission on Protected Areas, the United Nations Educational, Scientific and Cultural Organization (UNESCO) Man and the Biosphere Programme, the United Nations Environment Programme and the United Nations Food and Agriculture Organization, can help establish transboundary protected areas. Several regional agreements address transboundary protection, including the South Pacific Regional Environmental Programme, the Protocol on Specially Protected Areas and Wildlife in the Wider Caribbean Region, the African Convention on the Conservation of Nature and Natural Resources, the New Partnership for Africa's Development (NEPAD) and the Barcelona and Bern Conventions: particularly useful are the frameworks created in the Mesoamerican Biological Corridor and the Danube Basin.
What legal advice can provide
Although a few TBPA agreements have been finalised, they have been lengthy, expensive and limited in their success. Up to now, the most common first step in planning a TBPA has been to begin talks between governments, eventually leading to the negotiation of a "TBPA Agreement". Unfortunately, this first step has been a primary reason for failure, because inter-governmental negotiations are costly and difficult. A less formal approach may be more successful. The following steps may be useful:
- Analysis:
To identify issues; determine how these break down into national jurisdictions; analyse the TBPA objectives and assess if it will help to achieve these; and look at uncertainties.
- Assessment of different options for the form of Arrangement:
To meet particular needs of stakeholders. (A range of options is discussed below.)
- Strategy development:
To provide information and creating reasonable expectations.
- Advice in negotiations:
Particularly on matters
of procedure (how the process should work); "comparative" law;
and, if necessary, developing national legislation and
institutions.
Formal or informal agreements
Instead of a formal agreement, there are many flexible and less expensive legal options for creating TBPAs including:
- A "joint arrangement" (e.g. Memorandum of Understanding) for collaboration in cross-border protected area management.
- A "joint arrangement" for enforcement.
- An agreement or protocol regarding Environmental Impact Assessments and notice to (possibly participation by) people and institutions across the border, prior to action affecting protected areas on or near the 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.
Unlike a TBPA 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, dramatically shortening the first step and leaving more time and money for addressing shared problems. They can be more "flexible", taking advantage of a mutual desire to collaborate. Initial agreements can be quite limited, such as an annual meeting between managers prior to finalising annual management plans. Co-operation can evolve as the collaboration's effectiveness is seen, and adjustments can easily be made if some aspect isn't working. Agreements can also go into effect more quickly - there is no need for the initial agreement to address all of the potential issues relating to the TBPA and other issues can be addressed in stages as required.In time, the parties may be ready to negotiate a more formal instrument, but this process will hopefully by then be easier and less costly because they will, through working together, have developed a real consensus. The ultimate agreement may be broader, more binding, and less likely to need further revision.
This theme paper is based on a paper by Tomme Young of the IUCN Environmental Law Centre.
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