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Tb eNEWS - 8 - December 2013 - newsletter cover
Tb eNEWS - 8 - December 2013

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TRANSBOUNDARY CONSERVATION >> Key TBC considerations >> Law
Transboundary conservation – Legal issues

By Tatjana Rosen, Simon Jolivet and Tomme Young

While there is no international designation or convention that sets up transboundary conservation areas (including all four types of transboundary conservation practice), there are various legal instruments that can play a role in their establishment and management:

  International Law

Binding agreements like multilateral environmental agreements, bilateral treaties, and "international customary law" (accepted practices recognised by international tribunals) and non-binding agreements (memoranda of understanding).

   National Policy, Law and Regulations

They establish conservation areas at the borders and they provide for means of cooperation with the bordering conservation areas by determining what levels of authority will be in charge of supervising its management in each country.

  Sub-national Law and Regulations (regional, provincial, local)

Conservation activities are often decentralised and thus regional, provincial or local laws might determine what tasks will be carried out or supervised at those levels.

Several international conventions and the relevant decisions of the respective Conference of Parties provide a framework for establishing or encouraging the establishment of transboundary protected areas. They include: 

    The 1971 Ramsar Convention: under article 5 of the Convention: “The Contracting Parties shall consult with each other about implementing obligations arising from the Convention especially in the case of a wetland extending over the territories of more than one Contracting Party or where a water system is shared by Contracting Parties. They shall at the same time endeavour to coordinate and support present and future policies and regulations concerning the conservation of wetlands and their flora and fauna.”
   
The 1972 Convention for the Protection of the World’s Cultural and Natural Heritage: under this Convention there are a number of adjacent protected areas considered to be transboundary World Heritage Sites and thus States can nominate their protected areas jointly as one single transboundary protected area, when these areas are located next to each other, along an international border.
    The UNESCO Man and Biosphere Programme (MAB): The MAB Programme supports the development of Transboundary Biosphere Reserves and issued relevant Recommendations.
    According to the recommendation under the In-Depth Review of the Implementation of the Programme of Work on Protected Areas (UNEP/CBD/SBSTTA/14/WG.2/CRP.3), adopted by the fourteenth meeting of the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA 14) in May 2010, the Conference of the Parties of the Convention on Biological Diversity will at its 10th meeting in October 2010 in Japan be invited to urge parties to:
          -  actively explore the potentially suitable areas for transboundary protected area cooperation and create an enabling environment for transboundary cooperation in regards to management practices, connectivity as well as to social and economic development over national borders; and

          -  use existing guidelines, best practices and tools to improve the effectiveness of transboundary protected area cooperation as well as to explore the suite of standards to evaluate the quality of such cooperation.

 


 

   Voluntary tools and guidelines available

   Absent a legally-binding regime on TBPAs, there are guidelines and other tools available that can assist countries in their efforts to establish a TBPA. One set of general guidelines comes from the IUCN World Commission on Protected Areas (WCPA), which put forth a set of “good practice guidelines” under nine primary headings.

   Along with these guidelines, the WCPA proposed a “Draft Code for Transboundary Protected Areas in Times of Peace and Armed Conflict” which provides a framework for the management and/or resolution of tension and armed conflict in TBPAs. In 2003 the EUROPARC Federation established a certification system for “exemplary transboundary cooperation between protected areas” according to a set of criteria in the form of seven questions.

   Some of the most recent efforts to establish TBPAs have been carried out primarily through bilateral negotiations, often involving a non-governmental organization or intergovernmental organization as a facilitator. One example is the discussion on the establishment of the Pamir Transboundary Protected Area between Afghanistan, Pakistan, Tajikistan and China facilitated by the Wildlife Conservation Society. Another one is the Transboundary Flathead River valley Protected Area between Canada and the United States. Bilateral agreements typically include a set of provisions that defines the consequences of establishing a TBPA on State sovereignty as well as its goals and objectives. They include: sovereignty, goals and objectives, management plans (coordination of the two management plans or adoption of a single one for the whole area), zoning (core area, buffer zone), establishment of one or several common institutional bodies to coordinate the implementation of the agreement by all the protected areas involved, the need for harmonizing laws on specific sensitive issues (e.g. protected species, hunting) and financial mechanisms for funding joint projects and programmes.

   Below is a description of what sovereignty and goals and objectives provisions might include.

   Sovereignty

   This provision recognizes the importance of cooperation and institutional structures for joint management of the area consistently with the sovereign rights of the parties involved, in accordance with the Charter of the United Nations and the principles of international law, to:
     Reaffirm to utilize and manage resources to meet environmental and sustainable development needs and the responsibilities;
     Protect and preserve the environment within the limits of their jurisdiction; and
     Ensure that the activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond national jurisdiction.

   Goals and Objectives

   The goals and objectives will be specific to the TBPAs, by way of example, they might include:
     Promoting sustainable livelihoods among local people;
     Promoting peace and stability in areas of potential conflict;
     Protecting the ecological integrity of a landscape through a science-based approach to joint management and conservation;
     Improving the management of biodiversity by increasing scientific collaboration and more comprehensive research and improving opportunities for training, information sharing, and education;
     Improving management of existing protected areas within each country;
     Removing barriers that prevent the free movement of wildlife across international borders;
     Creating easier access for tourists to the various constituent areas making up the TBPA;
     Achieving collaboration across international boundaries between governance institutions and other stakeholders involved in the joint management of the TBPA; and
     Increasing regional economic benefits.