GUIDELINES FOR PROTECTED AREAS LEGISLATIONcmsdata.iucn.org/downloads/part_i_draft_pa_legislation_guidelines.pdf · IUCN – ELC PA Leg. Guidelines, working draft 2 RESTRICTED CIRCULATION

IUCN Environmental Law Centre

PA Legislation Guidelines, working draft 2

RESTRICTED CIRCULATION

GUIDELINES FOR PROTECTED AREAS LEGISLATION

Working Draft 2

Barbara Lausche

Project Background

Part I – BACKGROUND – BASIC CONCEPTS AND PRINCIPLES

Part II – GENERIC ELEMENTS FOR PROTECTED AREAS LEGISLATION

Part III – SPECIAL TYPES:

CHAPTER 1 – MARINE PROTECTED AREAS

CHAPTER 2 – TRANSBOUNDARY PROTECTED AREAS

CHAPTER 3 – VOLUNTARY CONSERVATION INITIATIVES

References

IUCN – ELC PA Leg. Guidelines, working draft 2 RESTRICTED CIRCULATION ONLY

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IUCN Environmental Law Centre Project

“Protected Areas Legislation Guidelines”

Project Background

I. Project Concept: In late 2007, the IUCN Environmental Law Centre (ELC) launched a three-year project

to prepare new guidelines for protected areas legislation updating and expanding the original guidelines of 19801

and reflecting new developments and new issues. These include significant advances in international environmental

law, improved scientific understandings on the role of protected areas in biodiversity conservation and sustainable

use, progress within national legal regimes with design and implementation by management category and

conservation objectives, and new governance approaches including community-conserved areas, private protected

areas, and transboundary areas. Moreover, marine protected areas (MPAs), long assumed to fit within a generic

legal framework for protected areas which was overwhelmingly terrestrial, are now recognized as a key tool for

marine biodiversity conservation, that needs special legal treatment because of unique physical and jurisdictional

features and management and enforcement needs.

The new Guidelines, as with the original ones, aim to help all those involved to address major issues needing

attention in modern national or sub-national legal regimes for protected areas. The principal audience is the legal

drafter working with the protected areas manager and other participants in the governance process who have a role

in reviewing, revising, developing or implementing protected areas legislation.

II. Operational approach: The project is under the general direction of Dr. Alejandro Iza, IUCN

Environmental Law Programme Head and Environmental Law Centre (ELC) Director in Bonn, Germany. Dr.

Francoise Burhenne-Guilmin, ELC Senior Counsel, is Project Officer. The principal contributor is Barbara J.

Lausche, environmental lawyer, member of the IUCN Commission on Environmental Law (CEL), and author of the

original guidelines. The operational phase of the project is expected to run for roughly two years, with the

remainder for final processing, publication and translation.

A steering group has been created to provide advice and guidance. This group is comprised of representatives

from the Protected Areas Programme and the Environmental Law Programme. An advisory and consultation

mechanism is being established, to provide specialized input and commentary on drafts, regional perspectives, and

case studies. The first building block in this mechanism is the WCPA/CEL Task Force on protected areas. Other

will be added as the project develops, in order to link with all IUCN components working in this field, as well as

with outside experts. Another is the cooperation with the University of Ottawa and IUCN Academy of

Environmental Law Project on Comparative Environmental Law and Policy on Protected Areas, which, in addition

to its own goals, will provide a flow of base line information and key findings into the Guidelines project.

The Steering Group will meet at least four times during the project‘s operational phase. The first meeting in

November 2007 focused on procedures for the group‘s work and substantive review and subsequent adoption of the

annotated outline for the Guidelines. The second meeting took place in Ottawa, on June 5 and 6, 2008. This meeting

followed one of the WCPA/CEL Task Force on protected areas (June 2), and the Protected Areas Law and Policy

International Workshop convened under the auspices of the University of Ottawa, IUCN Environmental Law and

Protected Areas Programme, and the IUCN Academy of Environmental Law (June 3-4). A review of the first

working draft of the Guidelines (Part I and II, Outline of Part III) took place during the Steering Group meeting on

June 5.

It is expected that further workshops will be convened on specific aspects of the Guidelines, to review drafts

and illustrations as the work develops, as well as to advise on ways to promote the guidelines as a practical tool, and

build mechanisms and networks for future coordination and collaboration.

Meanwhile an electronic review process of the first working draft is starting, and will continue through the

winter of 2008-2009.

1 Lausche, B., Guidelines for Protected Areas Legislation (IUCN Environmental Policy and Law Paper No. 16)

(IUCN-UNEP, 1980).


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IUCN ELC 29.9.08

Guidelines for Protected Areas Legislation

[Document 1]

PART I – BACKGROUND – BASIC CONCEPTS AND PRINCIPLES

Table of Contents:

Introduction ................................................................................................................................................................. 4 A. The Setting .............................................................................................................................................. 4 A. Purpose and Audience ........................................................................................................................... 6 B. Scope of Work ........................................................................................................................................ 6 C. Organization of the Guidelines ............................................................................................................. 7 D. Pre-drafting Preparations ..................................................................................................................... 8

1. Basic Protected Areas Concepts and Directions ................................................................................ 10 1.1 Protected Areas defined ....................................................................................................................... 10 1.2 Ecosystem Approach ............................................................................................................................ 11 1.3 System Planning ................................................................................................................................... 12 1.4 Management Categories ...................................................................................................................... 13 1.5 Management Plans ............................................................................................................................... 16 1.6 Connectivity .......................................................................................................................................... 17 1.7 Governance ........................................................................................................................................... 18 1.8 Co-management.................................................................................................................................... 20 1.9 Perpetual Integrity ............................................................................................................................... 21 1.10 Public Participation ............................................................................................................................. 22 1.11 Social Equity ......................................................................................................................................... 23 1.12 Financial Security ................................................................................................................................. 23 1.13 Precautionary Principle .................................................................................................................... 25 1.14 Adaptation/Dealing with the Unexpected ........................................................................................... 25 1.15 Taking an International Perspective .................................................................................................. 27

2. Implementing Multilateral Obligations .............................................................................................. 27 2.1 Global Environmental Conventions ................................................................................................... 28

2.1.1 Convention on Biological Diversity ........................................................................................... 28 2.1.2 World Heritage Convention ....................................................................................................... 34 2.1.3 Convention on Conservation of Migratory Species (CMS) ..................................................... 37 2.1.4 Convention on Wetlands of International Importance (Ramsar) ........................................... 39 2.1.5 Convention on International Trade in Endangered Species (CITES) .................................... 40 2.1.6 United National Convention on the Law of the Sea (UNCLOS) ............................................. 41 2.1.7 International Maritime Organization (IMO) Conventions ..................................................... 42

2.2 Sampling of Regional instruments ...................................................................................................... 42 2.2.1 Africa: The African Convention ................................................................................................ 43 2.2.2 Asia: ASEAN Convention........................................................................................................... 45 2.2.3 Europe: Bern Convention........................................................................................................... 46 2.2.4 The Americas: Western Hemisphere Convention .................................................................... 47 2.2.5 Regional Seas Programme .......................................................................................................... 48

2.3 European Union -- Natura 2000 .......................................................................................................... 50 2.4 International programmes and non-legally binding instruments .................................................... 52

2.4.1 Biosphere Reserves .......................................................................................................................... 52 2.4.2 FAO and Sustainable Fisheries .................................................................................................. 54 2.4.2 Instruments related to forests .................................................................................................... 56

3. Incorporating international principles of „soft law‟ .......................................................................... 57


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3.1 Stockholm Principles ........................................................................................................................... 57 3.2 World Charter for Nature ................................................................................................................... 57 3.3 Rio Declaration and Agenda 21 .......................................................................................................... 58 3.4 World Summit on Sustainable Development ..................................................................................... 58

4. Main References (Part I) ..................................................................................................................... 59

Introduction

A. The Setting

1 As the first decade of the 21st century passes, most countries of the world have protected areas, in all

totaling more than 100,000, and virtually all with some form of legal protection. These areas cover

roughly 12% of the Earth‘s land surface [see Box 1]. Growth in number and surface coverage of

protected areas had continued to trend upward since the 1960s, but scientific assessments were revealing

that biodiversity and ecosystem integrity were continuing to decline at alarming and accelerating rates.

As never before, protected areas were being better understood as critical components of the planet‘s

landscapes and seascapes for conserving biodiversity and delivering the essential ecosystem services

required for sustainable development and, more basically, for human life on Earth. There was an

emerging and broad scientific and policy consensus that existing coverage and management effectiveness

were grossly inadequate for meeting the challenges ahead. This is starkly evident for marine protected

areas where less than 1% of the planet‘s marine surface is protected. Moreover, the role of protected

areas in maintaining key ecological services has continued to be insufficiently appreciated in many

countries and global changes such as climate change and fragmentation have not been sufficiently take in

into account in system design.

2 In the 1990s, Heads of State and multilateral organizations began making formal policy commitments

to environmentally sustainable development through such instruments as the Rio Declaration and Agenda

21 of the 1992 United Nations Conference on Environment and Development (UNCED). , urgent action;

virtually all these initiatives have implications for national law and policy associated with protected areas.

By 2000, several global conventions directly relevant for protected areas had entered into force and were

well into implementation at national levels. Among the most prominent were the Convention on

Biological Diversity, World Heritage Convention, Convention on Wetlands of International Importance

Especially for Waterfowl Habitat (Ramsar), Convention on the Conservation of Migratory Species of

Wild Animals, Convention on International Trade in Endangered Species, and the Law of the Sea.

Regional agreements also experienced significant growth.

3 Beginning in 2000, this growing alarm about rising rates of biodiversity and ecosystem degradation

stimulated further global commitments relating biodiversity conservation to sustainable development and

setting specific targets to stem rates of loss. These included calls for urgent action with ambitious targets

to expand and more effectively manage protected areas worldwide as a major step to reducing

biodiversity loss and linking more comprehensively matters of conservation to sustainable development.

The United Nations Millennium Declaration adopted by the UN General Assembly in September 2000,

with its eight Millennium Development Goals (MDGs) to be achieved by 2015, including Goal 7, to

‗ensure environmental sustainability‘, which had among its indicators for measuring progress the ‗Ratio

of Area Protected to Maintain Biological Diversity to Surface Area‘ (MDG target 9, indicator 26).

4 Following close behind, in April 2002, the 188 parties to the Convention on Biological Diversity

(CBD) adopted the target to achieve by 2010 a significant reduction of the current rate of biodiversity loss

at all levels as a contribution to poverty alleviation and to the benefit of all life on earth (COP VI/26).


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5 In August 2002, the community of nations adopted the Johannesburg Declaration and a Plan of

Implementation at the United Nations World Summit for Sustainable Development (WSSD). The Plan

focused on needed achievements to reach remaining goals since UNCED including, prominently, better

protection and management of the natural resource base and biodiversity (WSSD, Chapter IV).

Recognizing that human activities were having an increasing negative impact on ecosystems and causing

unprecedented rates of biodiversity loss, that Plan among other things endorsed the 2010 biodiversity

target, called for a more efficient and coherent implementation of the CBD, further application of the

ecosystem approach, integration of the Convention into programmes and policies at all levels, and in

particular for the severely under-represented marine ecosystems establishment of representative networks

of marine protected areas by 2012 (paras. 32, 44).

6 Responding to these calls for global action, the Vth IUCN World Parks Congress in September 2003

adopted the Durban Accord and Durban Action Plan placing protected areas ―at the centre of international

efforts to conserve biodiversity and promote sustainable development‖ and calling for urgent world action

to build an ecologically representative, effectively managed global network of protected areas (Durban

Action Plan, 2004). Importantly, the 154 countries represented at the Congress called on the CBD

Conference of the Parties at their next session in 2004 to take several specific actions to strengthen,

expand, and consolidate existing systems of protected areas in order to meet the 2010 target, as well as the

Millennium Development Goals on sustainability. Among these, it urged the development of a

Programme of Work on Protected Areas that would significantly strengthen their role under the

Convention (Durban Action Plan, Outcome 1, 2004, and Message to the CBD) and the pursuit of proper

enabling conditions, including capacity building and a supportive policy and legal framework.

7 To round out these developments, the CBD Conference of Parties at its 7th meeting in February 2004

responded by adopting a comprehensive Programme of Work on Protected Areas (Dec. VII/28) which

declared ―an urgent need to take action to improve the coverage, representativeness and management of

protected areas nationally, regionally and globally‖ (para. 2) (see detailed discussion of the PA Prog. of

Work below, sec. 2.1.1). Among needed actions identified in the CBD Programme of Work on Protected

Areas are two directly relevant for these guidelines: l) adoption of legal frameworks for protected areas

systems where appropriate and 2) addressing legislative and institutional gaps and barriers that impede

effective protected area establishment and management (Programme Element 3).

Box 1: Worldwide Coverage of Protected Areas

According to IUCN/WCPA data, as of 2007, there were 106,000 protected areas covering some 18

million km2, or about 11.63% of the Earth‘s surface (need to add source – and update with latest numbers

before publication). While estimates of marine areas under protection are complicated because country

reports may contain some land area, best estimates as of 2007 were that there were 4,435 marine

protected areas covering 2.35 million km2, or only about .65% of the ocean surface. Particularly alarming

from those figures was the fact that critical marine ecosystems were severely under-represented.

Overall, however, significant progress has been made in growth of protected areas over the past

decade. IUCN records show that in 1962 there were 9214 sites covering 2.4 million km2. By 1992 these

figures had grown to 48,388 protected areas covering 12.3 million km2. As of 2003, the UN List of

Protected Areas (the most recent issue at this writing) contained 102,102 protected areas covering more

than 18.8 million km2, or about 12.65% of the Earth‘s land surface (UN List, 2003, p. 21), notably

slightly more than the 2007 in terms of surface coverage but less in terms of numbers. As these data

show, growth between 1992 and 2003 was significant, with a doubling by number and surface area. As

noted above, 2007 shows further growth in numbers.


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However, not all protected areas were being effectively managed and even though more areas are

being protected, the proportion of species threatened with extinction continued to increase. As concluded

by the 2007 Millennium Development Goals Report, ―Despite increased efforts to conserve the land and

seas, biodiversity continues to decline…. ―[U]nprecedented efforts will be required to conserve habitats

and to manage ecosystems and species in a sustainable way if the rate of species loss is to be significantly

reduced by 2010‖ (MDG Report, 2007, p. 23).

A. Purpose and Audience

8 In this globally inter-connected world, no protected area or wild species can be secure over time

without a supportive legal and policy framework that reflects the latest in best management practices and

international standards and commitments, all of which have made major advances in recent decades.

While legal content, style, and structure will vary from one country to another, knowledge and experience

have steadily improved as well about key about best practice legal principles for designing or

strengthening protected areas legislation.

9 These guidelines update and vastly expand the original IUCN guidelines released in 1980. They

incorporate the significant global law and policy developments that have taken place in recent decades in

the context of major advances in scientific understandings about biodiversity and ecosystem functions,

and the relation of these to human livelihoods, and sustainable development. The guidelines identify and

elaborate key legal elements and considerations for modern national or sub-national legislation for

protected areas, both for traditional sites and as these areas has expanded to marine environments, private

and community lands, and transboundary arrangements. In light of the substantial scope of this legal

effort, it has not been feasible or appropriate to address as well theory or practice in related fields such as

the natural sciences, anthropology, economics, sociology, all of which make essential contributions to

protected areas policy, law, and implementation, but have their own extensive and well-developed

literature and expertise with respect to protected areas.

10 The main intended audiences are the legal drafter and protected areas manager working closely

together along with others in the legislative process. The principles and concepts herein should not be

seen as prescriptive but rather as guidance, based on modern international law and policy, best practice,

and emerging experience, to help these different actors review, revise or prepare new protected areas

legislation adapted to local conditions and needs.

B. Scope of Work

11 The guidelines focus on ‗protected areas‘ where the primary purpose is conservation. They are

prepared based upon the premise that a protected areas legal framework., whether an national protected

areas law for the system of protected areas, or a site-specific legal instrument, should contain or take into

account certain core legal issues relative to establishing and maintaining that system or site if the

objectives of conservation are to be achieved and sustained.

12 The range of possible terrestrial and marine areas that may have conservation as the primary objective

is broad and the designations used for specific protected areas in one country may vary considerably from

those with similar conservation objectives in another country. Thus, an effort has been made to minimize

the use of specific labels. Instead, the emphasis is on the need for internal consistency of legal provisions

when applied to the national system for the objectives of the specific protected area involved. At the

same time, the guidelines recognize and promote use of the six management categories for protected areas

developed by the IUCN World Commission on Protected Areas based on specific conservation objectives

(see discussion of management categories below). In that light, the guidelines contemplate being


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applicable and useful for a range of conservation types, from those requiring strict protection to others

with multiple use objectives over defined landscapes and seascapes.

13 Finally, these guidelines incorporate examples from existing legal frameworks and experiences with

modern protected areas legislation whenever possible. Examples are drawn from a number of case

studies prepared specifically for this project. They are meant to be illustrative only and should not be

taken as a model. One country‘s legislative language may not be appropriate for another country‘s legal

system, style, or jurisdictional need. There is no ideal example. Each drafter should formulate appropriate

specific language for elements identified in these guidelines to the extent applicable and responsive to the

specific legal and policy needs at hand.

C. Organization of the Guidelines

14 The Guidelines are divided into three main parts. Part 1, entitled Preliminaries, begins with a

discussion of basic protected areas management concepts and directions that have become accepted

international principles for effective protected areas systems and sites over the long-term; the concepts

addressed all require legal attention in some form. Next, the Part reviews the major global treaties and a

sampling of regional law instruments with obligations or implications for protected areas at national or

sub-national level, thus requiring legal action for implementation. Relevant international policy

principles are briefly noted for potential application in national law and policy. The Part closes with a

summary of pre-drafting preparations, including determining relevant aspects from these preliminary

topics for the specific national or sub-national context involved, as well as added tasks of the legal drafter

directly associated with undertaking inventory and analysis of the existing legal and institutional picture

as baseline for the actual drafting work.

15 Part II, entitled Generic Elements for Modern Protected Areas Legislation, comprises the

substantive guidance which is the main purpose of these guidelines. It lays out key elements and issues

which should be taken into account in principle legislation comprising a national/sub-national protected

areas legal regime. Traditionally, these instruments have applied primarily to public protected areas

governed by protected areas agencies. Increasingly, modern protected areas legislation is incorporating

important concepts and supportive provisions to broaden the traditional systems with special types.

Recognizing that each country has unique circumstances and rules within which the protected areas legal

framework will need to be developed and implemented, it was considered that proposing a ‗model‘ legal

framework would not be helpful. Legal, political, social, economic, cultural, and ecological systems vary

greatly around the world making it inappropriate to assume ‗one-size-fits-all‘.

16 Wherever possible, the legal elements enumerated in this Part draw upon IUCN best practice

management practices and international and national experiences. Examples of country legal approaches

with respect to specific elements of a legal framework are interspersed where information is available.

While not all elements may apply in every country or fit within the same legal instrument or at same level

of authority., the intention is for the legal drafter and protected areas manager to have the benefit of the

full array of legal considerations which they can then filter and make judgments, subject to local

circumstances, as to relevance for a legislative review or strengthening exercise.

17 Part III of these guidelines, entitled Special Considerations, lays out those additional legal issues that

need consideration for three special types of protected areas. The first type (Chapter 1) is the marine

protected area (MPA). For many years, marine protected areas were assumed to fit within a generic legal

framework for protected areas systems which was overwhelmingly terrestrial. This assumption has

gradually been disproved as improved scientific and legal understanding has advanced about the unique

physical and jurisdictional features and management and enforcement needs of marine areas if they are to

be an effective tool for marine biodiversity conservation, an area where significant growth is urgently


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needed. The second special type (Chapter 2) is the transboundary protected area, generally also governed

as a public protected area involving multiple countries or jurisdictions. The third special type (Chapter 3)

is the voluntary conservation initiative, a recognized growth area in recent years though such efforts have

existed for centuries in many places, especially with indigenous and traditional peoples. The main new

governance type frequently associated with such voluntary actions is the Private Protected Area (PPAs),

and where communities are involved this is normally further characterized as a Community-Conserved

Area (CCA). Increasingly, protected areas programmes are rcognizing the important benefits of these

voluntary conservation efforts as components of formal public protected areas systems or as components

of broader, supportive landscape/seascape conservation regimes. This is an emerging area of protected

areas law, generating special legal and institutional considerations for their full recognition as part of

protected areas regimes.

18 [Appendices: to be decided, apart from main reference documents, perhaps excerpts from important

reference documents, highlights of exemplary contemporary legislation, etc.]

D. Pre-drafting Preparations

19 The above sections laid out key concepts and issues related to the modern field of protected areas

management that are important background for the legal drafter working with the protected areas manager

to examine and take into account as locally relevant. This is an essential part of the preparation process in

advance of drafting.

20 Such pre-drafting analyses helps set the stage for a drafting process that works as a partnership

between the technical specialist who must implement the law, the protected areas manager, and the legal

drafter, who must ensure legal clarity and adequacy to effectively deliver the substantive results

envisioned for the protected areas programme. It also reinforces the essential point that legal drafting is

only one part of the larger process of technical and scientific analyses, defining the substantive needs of

the programme based on this analysis and building sufficient policy-level support to activate a legislative

review and reform process with legal technical expertise.

21 The legal drafter is not usually a party to the beginning of this process. More likely a technical

branch of Government, an elected official, a conservation organization, civic or community group, or

other interested constituency may singly or jointly originate the idea to update, strengthen, or enact new

protected areas legislation. Before the drafter becomes directly involved, planners, protected areas

managers, and scientists need to collect a range of information, including basic natural resource data,

forward-looking government plans for land use, and existing patterns of land use, information on species,

habitats, and ecological processes to identify gaps in the existing system and help select new areas to fill

these gaps. Taking account of environmental, social, cultural and economic linkages, and political

jurisdictions, this review also should include an assessment of existing protected areas and the scope and

need for boundary changes, as appropriate, including expansion beyond existing boundaries.

Consultation and coordination with other government agencies, local communities and stakeholders is

essential for these preparatory steps. By the time the legal drafter enters the picture, it is likely that

proposed needs have matured considerably at the policy level so as to be accepted by Government as part

of its agenda and designated as a formal task and activity of government.

22 Once the legal drafter has the assignment, his/her first task is to work with the protected areas

authorities to understand the main national and protected areas goals and objectives the programme and

legislation are to serve. It is helpful to have clear drafting instructions from the protected areas

authorities, but this is not always the case. There may be a formal policy statement adopted by

government where goals, objectives, rationale, and anticipated timeline outcomes are announced. All

written background information is helpful. Even with such prepared materials, however, it is essential


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that the legal drafter initiate regular consultations with the responsible protected areas authorities and

maintain close working relations and consultations throughout the process.

23 The second task of the legal drafter is to do a legal analysis and inventory of the existing legal

framework, including associated policy, relevant administrative practices, and court decisions dealing

with protected areas. This review should include identification of specific international or other

multilateral environmental law obligations to which the country must comply with legislative action –

some of the main instruments were highlighted above in section 2 but there may be additional regional

and perhaps bilateral obligations, as well as commitments with international organizations that may be

relevant. Special attention should be noted of those obligations which are not self-executing but require

adoption of specific legal measures within domestic law to satisfy compliance.

24 Furthermore, areas of potential conflict, duplication, or confusion with other national legislation

should be identified. These are likely to be in several areas. The most obvious legislative overlaps relate

to production sectors dealing with natural resources which commonly have separate legal frameworks –

e.g., forests, wildlife, fisheries, water, agriculture, land use and physical planning, soil conservation,

development control, industrial promotion, general environmental protection, environmental impact

assessment, land tenure, legally recognized traditional and customary resource practices, and land

acquisition. The legal drafter should be familiar with these and other legal instruments likely to be

affected by or in potential conflict with new or revised legislation.

25 It also is important to understand the current and potential roles and capacities of concerned or

involved institutions at different government levels, from national to local, with respect to the scope of the

anticipated legislative reform as well as where functions and responsibilities for implementation of

different aspects will fall. Working closely with the protected areas manager, this information is

important for identifying requirements as to where certain responsibilities and functions fall by national

mandate in the government public sector and options for involving other entities in governance roles at

different jurisdictional levels, either with a co-management approach or delegation of direct authority.

Potential roles of stakeholder groups, local communities, indigenous or tribal peoples, non-governmental

organizations and private sector groups should be included in these deliberations. With this analytical

background and inventory of current instruments and options, the drafter will have as full a picture as

possible about the most effective approaches to incorporate in the legislation for ensuring best results for

the protected areas programme.

26 Once this analysis is complete, one final strategic decision, alluded to throughout this preliminary

section, needs to be taken where the recommendation of the legal drafter is of central importance. This

relates specific to how the protected areas legislation will fit within the statutory framework of a country.

There are two fundamental choices:

a. amend or enact new law -- this issue involves the decision, once needs have been assessment,

whether it will be sufficient to amend existing legislation or new legislation will be needed.

In cases where the principal legislation is from the 1980s or earlier, it is highly likely to be so

outdated that minor amendments are not sufficient since most of the modern international law

obligations and scientific and management principles that need legal grounding have come

more recently. Moreover, it is likely that even in recent legislation, marine protected areas

may be inadequately addressed (see discussion in Part IV, below) as well as the new types

now widely recognized as important for a full-bodied protected areas system – private

protected areas and community-conserved areas.

b. stand-alone vs. a title or chapter in omnibus environmental legislation – where new

legislation is called for, this issue relates to whether protected areas legislation will be

developed as a separate law or as a component of an omnibus environmental law or code.


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Even when it is in a code, commonly the substantive provisions would be prepared as a stand-

alone piece and then placed into the proper location in the code dealing with the natural or

physical environment Most countries have stand alone legislation but a number, for

example, France, have an omnibus environmental code within which the protected areas legal

framework is a separate ‗book‘ within the code.

27 If it is decided that a new principal act is needed (whether stand alone or incorporated in a larger

code), it is important to keep in mind that the process will take time, normally numbered in years, from

the point the policy decision is made to develop a new law through the inventory process, initial and

subsequent drafts, review, technical and public consultation, and final policy review and government

enactment. In the interim, it will be important to adopt temporary protection measures for the proposed

sites (see below).

1. Basic Protected Areas Concepts and Directions

28 As understanding has improved about the role of protected areas in livelihoods, ecosystem processes,

biodiversity conservation and sustainable development, knowledge has improved about key elements and

best practices to take into account with design, establishment, and management of protected areas systems

and sites in order to successfully serve these functions. In recent decades, globalization of

communications, knowledge and culture have helped people worldwide with access to the same, vast and

diverse knowledge and experience about important issues and practices for protected areas sustainability.

New institutions and forms of governance also have come to be recognized as future opportunities for

strengthening and expanding effectiveness of protected areas, including involvement of new global

environmental institutions and an expanding pool of non-governmental organizations at local, national

and global levels. Worldwide, research is showing that more functions of government are being

decentralized to lower levels of government or to communities or to the private sector, inspiring new and

innovative co=management arrangements with new groups and individuals.

29 In this context, IUCN protected areas and other specialists have identified a number of core issues,

concepts, and directions as best practice considerations for protected areas design, establishment, and

management that need to be taken into account in protected areas legal frameworks. While there is no

one way to facilitate incorporation or reflection of these elements into a particular country or sub-national

context, they are broadly accepted by the international community and by protected areas specialists as

essential considerations and thus warrant attention with respect to their legal implications.

30 Since the late 1990s, the IUCN World Commission on Protected Areas (WCPA) has been

disseminating best practice guidance through a series of publications. As of 2008, there were 15 science-

based publications on various core aspects of protected areas management (planning, evaluation,

management categories, etc.). Such tools have become invaluable aids for protected areas planners,

managers, and environmental policy and law specialists as they endeavor to design and manage modern-

day protected areas. Importantly, their development and application also has helped inform decision-

makers and managers about essential capacity-building needs associated with well-managed protected

areas, including the need for a supportive legal and policy framework if protected areas are to be

successful and sustainable in the long-term. Where relevant, WCPA‘s best practice guidelines are noted

in relation to their associated legal elements.

1.1 Protected Areas defined

31 IUCN defines ‗protected area‘ as ―….[subject to update… ‗a specifically delineated area designated

and managed to achieve the conservation of nature and the maintenance of associated ecosystem services

and cultural values through legal or other effective means‘…{update as needed}]. For IUCN, only those


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areas where the main objective is biodiversity or nature conservation are considered protected areas.

While there are a wide range of approaches in the world contributing to nature conservation, including

many sites with other goals, the IUCN definition requires that in case of conflict nature conservation must

be the priority (version Aug. 21, 2007)]. The term ‗protected area‘ in any particular country or

jurisdiction may embrace many different land or water designations; some of the most common

designations being national park, nature reserve, wilderness area, wildlife conservation area, forest

conservation area, marine reserve.

32 IUCN has further elaborated a definition to be applied to protected areas with forests. Within the

context of the above general definition for protected areas, IUCN defines ‗forest protected areas‘ as a

subset of all protected areas that includes a substantial amount of forest and may be the whole or a part of

a protected area. Forests for the purposes of Forest Protected Areas are those forests occurring within a

protected but excluding those that are managed for a primary objective other than biodiversity

conservation and associated cultural values (Dudley, et al, 2006). This definition also acknowledges that

there may be other conserved forests which occur outside protected areas and therefore do not qualify as

Forest Protected Areas but are nevertheless managed in ways that have important benefits for

biodiversity. Thus, conserved forests may perform some of the same functions as Forest Protected Areas

and share some of their characteristics, but the biodiversity benefits are incidental to the main purpose of

forest management.

33 The Convention on Biological Diversity (CBD) defines ‗protected area‘ generally as a

―geographically defined area which is designated or regulated and managed to achieve specific

conservation objectives‖ (Article 2).

34 IUCN has developed a definition for marine protected areas comparable to its generic definition for

protected areas to include the marine environment and also coastal land areas and islands. That definition

of an MPA is any area of intertidal or subtidal terrain, together with its overlying water and associated

flora, fauna, historical and cultural features, which has been reserved by law or other effective means to

protect part or all of the enclosed environment‖ (Kelleher, IUCN, 1999, p. xviii).

35 The Convention on Biological Diversity further elaborated on a definition for Marine and Coastal

Protected Areas at its first meeting of the Conference of Parties (COP) in 1995: ―Marine and Coastal

Protected Area means any defined area within or adjacent to the marine environmental, together with its

overlying waters and associated flora, fauna, and historical and cultural features, which has been reserved

by legislation or other effective means, including custom, with the effect that its marine and/or coastal

biodiversity enjoys a higher level of protection than its surroundings.‖ (CBD Tech. Paper No. 13, p. 7).

36 Both the IUCN and CBD definitions are consistent in requiring that the primary objective of protected

areas must be conservation; in the case of the CBD, biodiversity in particular receives the dedicated

attention.

1.2 Ecosystem Approach

37 The Ecosystem Approach is a strategy for the integrated management of land, water and living

resources that promotes conservation and sustainable use in an equitable way. States have adopted the

approach as the primary framework for action under the Convention on Biological Diversity (CBD), the

5th Conference of Parties (COP) in 2000 endorsing descriptive and operational guidance on use of the

approach (Dec. V/6), followed by further guidance on the approach endorsed at the 7th COP in 2004

where parties agreed that the priority should be on facilitating the implementation of the ecosystem

approach (Dec.VII/11). The CBD Programme of Work on Protected Areas adopted by the Parties at that

same COP included specific reference to the ecosystem approach in relation to the Programme‘s overall


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purpose and scope: ―The Convention's work on protected areas takes into account the ecosystem

approach…. The ecosystem approach provides a framework within which the relationship of protected

areas to the wider landscape and seascape can be understood, and the goods and services flowing from

protected areas can be valued. In addition, the establishment and management of protected area systems

in the context of the ecosystem approach should not simply be considered in national terms, but where the

relevant ecosystem extends beyond national boundaries, in ecosystem or bioregional terms as well. This

presents a strong argument for and adds complexity to the establishment of transboundary protected

areas….‖ (para. 8).

38 Several other multilateral environmental agreements, including the Convention on Migratory Species,

Convention on International Trade in Endangered Species of Wild Fauna and Flora, along with several

regional agreements, recognize the importance of integrated approaches to land/seascape management in

pursuit of their conservation objectives, including also the cultural landscapes inscribed on the World

Heritage List and the World Network of Biosphere Reserves.

39 The Vth IUCN World Parks Congress (WPC) in 2003 adopted the concept for application to

protected areas design and management, as well as governance, recognizing that to be effective, protected

areas and their focus on biodiversity conservation ―must be managed in the context of the broader

land/seascape‖ (WPC Rec. V.9). Particularly in the context of governance of protected areas, it also

recognized that ―protected areas should be managed in keeping with the Ecosystem Approach‖ as defined

by the CBD (WPC Rec. 16). Elaborating on this in the Durban Plan of Action, the Congress that the

ecosystem approach to protected areas planning means that protected areas are set within a wider matrix

of ecosystem-based, environmentally sensitive land and water management, supported by the

mainstreaming of environmental considerations into various areas of public policy (Durban Plan of

Action, Main Target 4).

40 It is important that modern protected areas legal frameworks incorporate this fundamental principle as

a mandate and goal for design of protected areas systems and establishment and management of

individual sites. A requirement that applies the ecosystem approach to protected areas helps support other

provisions in protected areas legislation or in other legislation, as appropriate, on buffer zones and

compatible land use or marine activities adjacent to designated protected areas or in zones of

environmental influence beyond buffers (e.g., upstream watersheds, airsheds, or marine zones sharing

currents and tides), as well as conservation corridors to advance connectivity (see below__). Other

legislation relevant here includes legislation on environmental impact assessment, land use planning,

development and environmental permitting, or sustainable development generally.

1.3 System Planning

41 One of the prerequisites for an effective protected areas programme, and a requirement important to

incorporate in protected areas legislation, is the need to have a system planning approach to protected area

identification and management. It is increasingly recognized that no protected area can survive if

managed in isolation, and that a case-by-case, ad hoc approach to site selection and management will not

be effective in meeting a country‘s conservation needs or goals over the long term. Through system‘s

planning (as compared to a more site-by-site approach), overall budgets and resources can be better

planned and allocated, trade-offs better understood in biodiversity and economic terms, inter-relationships

between protected areas addressed, connectivity elements incorporated, varied and diverse stakeholders

interests identified, and international obligations incorporated. Systems planning helps define and phase

in priorities at a national or macro-planning level and understand external factors which may present the

major threats to conservation. It allows for application of an ecosystem approach to the maximum extent

possible with protected areas part of ecological networks.


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42 The need for a system approach and a prepared system plan for national protected areas programmes

has become a recognized principle. Participants of the Vth IUCN World Parks Congress, through the

resulting Durban Action Plan, called on each authority with relevant jurisdiction at national and sub-

national levels to develop an overall plan for its protected areas within a framework based on

biogeographical regions and in consultation with all relevant constituencies (Outcome 3, Main Target 5).

Similarly, the Convention on Biological Diversity calls on countries to ―establish a system of protected

areas, with emphasis on a system of sites to conserve biodiversity in its different components‖ as a

principle means of meeting the conventions objectives (Art. 8(a)).

43 Best management practice guidelines have been developed by the IUCN World Commission on

Protected Areas on national system planning for protected areas (Davey, IUCN/WCPA, 1998). These

guidelines lay out the rationale, characteristics, scope, components, and requirements for successful

implementation of a system plan. Five key characteristics are identified to define a system of protected

areas and also to serve as criteria against which individual areas can be assed for their potential or actual

contribution to the system relative to other areas. These are:

representativeness, comprehensiveness. balance – applicable especially to the country‘s

biodiversity but also to other features such as landform types and cultural landscapes. This

set of characteristics relates to delivering the highest quality examples of the full range of

environmental types, and includes the extent to which protected areas provide balanced

sampling of the environment types they purport to represent;

adequacy -- relating to integrity of the system and site, sufficiency of special extent and the

arrangement of contributing units together with effective management to support the viability

of environmental process and species, populations and communities which make up the

country‘s biodiversity;

coherence and complementarity – the extent to which each site makes a positive contribution

to the whole;

consistency – the application of management objectives, policies and classifications under

comparable conditions in standard ways so that the purposes of each unit are clear while

maximizing the change that management and use will support the conservation objectives;

cost effectiveness, efficiency and equity –this refers to finding an appropriate balance

between the costs and benefits flowing from protected areas and appropriate equity in their

distribution; this feature also includes the need for efficiency in terms of the minimum

number and size of protected areas needed to achieve the system objectives.

44 For national systems planning to be effective, protected areas programmes need to prepare and

periodically review and update the national system plan for protected areas. A supportive legal

framework for protected areas should recognize the need for a protected areas system plan, its core

purpose and content, who is responsible for its development and implementation, participatory elements,

monitoring and periodic revision.

[possibly add Box on highlights of IUCN Best Practice with „Identification and Gap Analysis of Key

Biodiversity Areas – Targets for Comprehensive Protected Areas system, No. 15]

1.4 Management Categories

45 Another important consideration for the legal drafter in reviewing and formulating updated provisions

for a protected areas legal framework are the 6 management categories for protected areas that have been

defined by IUCN based on different conservation objectives for different sites and in place since 1994

[see Box 2]. Many countries have chosen to use these categories in their protected areas systems and


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several have chosen also to incorporate them in their legislation in various respects, from general

objectives, to definitions, to specific types of protected areas authorized for establishment. Recognizing

that other countries also may have preferred to use other terms and designations based on local legal

practice and custom, the scope of protected areas systems by specific conservation objectives typically

still reflects a range of similar objectives, from strict to more managed multiple-use approaches.

Box 2: IUCN Protected Area Management Categories*

Category 1. Areas needing strict protection, covering both ‗strict nature reserves’ (protection for

science) and ‘wilderness areas’ (providing wilderness protection, where only scientific research and/or

monitoring are allowed by permit. .

Category 2. Sometimes called ‘national parks’. Areas managed for recreation, tourism, and

ecosystem conservation. This category applies to many of sites, both land and marine, in most countries.

Category 3. Sometimes called ‗natural monuments’. Areas management for natural features.

Protected areas managed mainly for conservation of specific natural features, such as natural monuments

or cultural/historic monuments where tied to a natural setting, and including sites with valuable marine

archeological resources.

Category 4. Sometimes called ‗habitat/species management areas.‘ Conservation through Active

Management: generally defined as protected areas managed mainly for conservation through active

management intervention; relates to both wild fauna and flora, e.g., special bird nesting areas, turtle

nesting areas, wetlands for endangered waterfowl, feeding/breeding areas for endangered migratory

species, both terrestrial and marine, including whales, etc. Significant potential for increased use of this

category.

Category 5. Sometimes called ‗protected landscapes/seascapes’. Landscape/Seascape Conservation

and Recreation: generally defined as protected areas managed mainly for landscape/seascape conservation

and recreation where the interaction of people and nature over time has produced an area with distinct

character with significant aesthetic, ecological and/or cultural value, often with high biological diversity.

Category 6. Sometimes called ‘managed resource’ or ‘multiple-use resource areas’. Sustainable Use

of Natural Ecosystems: generally defined as protected areas managed mainly for the sustainable use of

natural ecosystems and their resources.

* Adapted from Guidelines for Protected Areas Management Categories (IUCN, 1994).

46 One important motivation for use of these categories in some manner, either directly or through

parallel definitions using different terms, is that UN List of Protected Areas produced by IUCN continues

to be based on analysis of the areas according to several factors, including predominantly the IUCN

Protected Areas Management Categories. The latest UN List, published in 2003, included protected areas

for the first time that had not been assigned an IUCN category so long as they met the IUCN definition of

a protected area. While this is more reflective of the actual amount of territory under protection, the

UNEP World Conservation Monitoring Centre (WCMC) which compiled the list has stressed that this

new approach in no way diminishes the importance placed by IUCN, UNEP, IUCN‘s WCPA, and

WCMC on the assignment of management categories as a mechanism for rational international

assessment of protected areas, and that, on the contrary, inclusion of non-categorized sites clearly showed

the progress that had been made in assigning categories to most of the sites -- 67% of the total number

and 81% of the area reflected for that compilation. According to WCMC, ―the value of the category

system reinforces the need to achieve the goal of progressively assigning all relevant sites to an IUCN

category‖ (see online <http://www.unep-wcmc.org/protected_areas/UN_list/).


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47 To keep the categories as relevant and useful as possible, IUCN/WCPA initiated research and review

of the uses of the categories Pursuant to a decision of the 2003 Vth IUCN World Parks Congress (WCP

Rec. V.19). The aim was, as needed, to update the 1994 guidelines on the management categories giving

attention, among other things, to their use for specific environments (marine and freshwater, forests,

wetlands, etc.) and the legal implications of their use in legislation (emphasis added).2

48 Adding further weight to the law and policy value of these categories, the CBD Conference of Parties

in its 2004 decision to adopt the Programme of Work on Protected Ares recognized the value of a single

international classification system for protected areas and the benefit of providing information that is

comparable across countries and regions and therefore welcome[d] the ongoing efforts of the IUCN

World Commission on Protected Areas to refine the IUCN system of categories and encourage[d]s

Parties, other Governments and relevant organizations to assign protected-area management categories to

their protected areas, providing information consistent with the refined IUCN categories for reporting

purposes (Dec. VII/28, para. 31). The 9th Conference of Parties meeting in Bonn, Germany in 2008

reaffirmed and incorporated verbatim this this prior decision, once again encouraging Governments to

assign protected area management categories to their protected areas and provide information consistent

with the IUCN categories for reporting purposes‖ (Dec. IX/18, para. 9).

49 Recent research on the use of IUCN‘s protected areas management categories in legislation found that

many countries were using the system either as a framework for developing legislation or policy and in

some cases in the legislation directly. [See Box 3] This underscores the important influence that

framework of management categories is having at national and international law and policy levels, both as

substantive guidance and to foster some coherence and comparability across legal jurisdictions.

Box 3: Use of Protected Areas Management Categories in Law and Policy

IUCN initiated a Speaking the Common Language project in 2002 to assess the performance of the IUCN

protected area management categories and report back by roughly 2004, some ten years after the system had been

established. One component of the project focused on use of the categories in law and policy.

IUCN‘s Environmental Law Centre (ELC) was asked to research legal and policy frameworks for protected

areas to see whether these have been influenced by the IUCN system of protected area management categories. In

2002-2003, ELC undertook research on this topic, identifying 20 countries whose national legislation quotes the

IUCN protected area management categories or very similar categories. Of the 322 pieces of national legislation

included in the statistics from 164 countries, 7% of the national legislation reviewed used the IUCN protected area

management categories. When reviewing the results of legislation developed from 1994 onwards, 10% of these

incorporated the IUCN categories in some way. According to the study, in most cases, the categories proved to be a

good starting point for discussion and appeared to provide ground rules and a good framework to begin reviewing or

developing legislation or policy for protected area systems. It also appeared that more countries used the IUCN

categories in national policy than in national legislation. The study results highlighted the need to continue

promulgating the concept of the IUCN protected area management categories to a wider audience and provide

guidance and education to those people involved in the development of protected area policy and legislation.

(See B. Dillon, ―Working Paper – Influence of IUCN Protected Area Management Categories on National, Regional and

International Legal and Policy Frameworks,‖ IUCN ELC, 2003).

2[ In January 2008, WCPA circulated for comment a draft paper with the results of this effort entitled

―Guidelines for applying protected areas management categories.‖ Work continues to refine these guidelines, and

any updates specific to legal aspects will be reflected in a subsequent draft of these guidelines.]


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50 The management categories to be used for the protected areas system or site are important to take into

account by the legal drafter in the legal review and strengthening process. The protected areas manager

should provide substantive information to the drafter on which categories are to be used and how they are

to be defined to serve the various conservation objectives and purposes of the system or specific sites. It

is then the task of the legal drafter to turn this information into language that is explicit enough about the

range of conservation-based management objectives envisioned for the system or the specific

conservation-based management category for particular sites, as the case may, to ensure furtherance of the

overall biodiversity conservation goals. Management categories help to standardize types of areas that

may qualify to be established and included in the protected areas system under the law, content of a

management plan, and identification of permitted and prohibited activities in particular sites and the

region as a whole. These legal applications are discussed in detail in corresponding sections of Part II.

51 In addition, IUCN Protected Areas Management Categories have possible application to marine

protected areas but experience has shown that this must be done flexibility since a particular marine site

may not fit neatly into only one category but may meet the conservation and management objectives of

more than one category in different zones. In 1998, the Parks magazine of the World Commission on

Protected Areas (WCPA) included examples of how MPAs can be categorized under the IUCN system.

As expansion of marine protected areas has become action of increased urgency, attention has focused on

giving more guidance specifically on how the categories might be applied to MPAs. Toward that end, the

3rd IUCN World Conservation Congress in 2004 adopted a resolution calling upon IUCN to give priority

to updating the guidelines for management categories specifically concerning their application to marine

areas (IUCN Res. 3.048). This was reiterated by the Vth IUCN World Parks Congress and made a

priority goal of the IUCN/WCPA Marine Plan of Action 2006-2012 (WCPA Marine Plan of Action, p.

16).

1.5 Management Plans

52 While a national systems plan focuses on macro-level, planning also is called for at the site-specific

level. Again, site management plans need to be tailored to implement the specific conservation objectives

of each site (as the case may be, guided by the conservation objectives of the IUCN protected areas

management category or other similar classification for that site). Best management practice guidance

from IUCN/WCPA call for management plans for individual protected areas to set out the ―management

approach and goals, together with a framework for decision making, to apply to a protected area over a

given period of time. Plans may be more or less prescriptive, depending upon the purpose for which they

are to be used and the legal requirements to be met‖ (Thomas, et al, IUCN/WCPA 2003)

53 Some international programmes require management plans. For example, UNESCO Operational

Guidance under the World Heritage Convention requires management plans for natural sites being

considered for inclusion in the World Heritage List (see WHC below, ___).. Management plans also are

seen by many donors as a central tool for monitoring and measuring progress of protected areas projects

receiving funding assistance and for tracking accountability.

54 A supportive legal framework for protected areas should require preparation of Management Plans.

A legal basis for Management Plans is essential if managers are to effectively control public activities,

preserve and maintain conservation objectives of a protected area, and implement compliance and

enforcement actions called for in the plan. Legal frameworks should include provisions on the essential

content of such plans, processes or procedures for preparation and approval, including stockholder

participation, monitoring, evaluation, and periodic review of the plans to reflect changing needs and


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conditions. IUCN‘s best practice guidance in this area is very helpful for the legal drafter when laying

out the required content, process, and meaning of a management plan and planning process in legislation.

1.6 Connectivity

55 The backbone of a protected areas system is the set of core areas the system aims to protect based on

the various conservation goals each area has been identified to serve as part of the system. It is

increasingly recognized that these core areas cannot survive over the long term as isolated islands. They

need to be an integral part of broader biodiversity conservation and land use planning frameworks that

promote compatible activities in surrounding areas, movement of threatened species including wide-

ranging species, and maintenance of the ecological processes essential for the long-term survival of the

species and ecosystems targeted for conservation. This planning necessarily involves ensuring that core

areas are buffered from potentially harmful external effects and facilitate movement of wide-ranging

species in and out of the protected areas. Typically, these areas are called buffer zones.

56 In addition, understanding has improved that survivability and resilience of protected areas,

particularly to such processes as climate change, will require broad scale approaches that foster natural

connectivity between core areas and the conceptual design of ecological networks. Conservation

corridors have become a growing tool promoted by the international and scientific communities for

generating this connectivity. Such corridors, if planned well for biodiversity conservation, would provide

critical linkages between protected areas (both for species and maintaining ecosystems) and serve to

facilitate ecological networks.

57 Development of buffer zones and corridors to promote connectivity also is required under the

ecosystem approach reviewed above. In furtherance of the ecosystem approach, the Vth IUCN World

Parks Congress recommended to governments, non-governmental organizations, local communities and

civil societies the adoption of ―design principles for protected areas which emphasise linkages to

surrounding ecosystems and ensure that the surrounding landscapes are managed for biodiversity

conservation (Rec. V.9). The Durban Plan of Action emanating from the Congress elaborated further:

―…[F]ew protected areas will ever be large enough to include entire ecosystems, and all protected areas –

however big – will be affected by developments beyond their borders….[M]any protected areas are cut

off from the surrounding environment, where land uses and economic activities are planned without

regard to the effect on the protected area, ignoring the movement of species, nutrients and other

environmental flows across boundaries. To address this, an ecosystem or landscape-scale approach to

protected areas planning is needed. This requires a conceptual move from protected areas as ‗islands‘ to

protected areas as parts of ‗networks‘ (Durban Plan of Action, Main Target 4).

58 Generally, implementation of broad concepts such as connectivity and ecosystem management

requires supportive legislation and public policy in other areas besides protected areas, including land use

planning and monitoring, environmental impact assessment, development control, environmental

permitting, and sustainable development. The application of connectivity is a commitment made by

governments for achieving the goals of international agreements, in particular, the Convention on

Biological Diversity, the Convention on Migratory Species, and the UNESCO biosphere programme.

Support and promotion of national and regional ecological networks and corridors for biodiversity

conservation was a commitment made by states in the 2002 World Summit on Sustainable Development

Plan of Implementation (para. 44, (g)), and was identified as a main target area for attention in the Durban

Plan of Action (Main Target 5).


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?Possible Box __: Connectivity Conservation – A Emerging Legal Principle for Protected Areas

(highlighting aspects of IUCN work/Patti Moore‟s paper??)

1.7 Governance

59 In recent years, an emerging concept called ‗good governance‘ has gained commitment and

momentum from the international community and governments worldwide as an essential element for

sustainable development. As recognized by IUCN and the international community, ‗governance‘ is

generally understood as the interactions among structures, processes, traditions, and knowledge systems

that determine how power and responsible are exercised, how decisions are taken and how citizens and

other stakeholders have their say (Lockwood, et al, 2006, Ch. 5, p. 116). Traditionally, government

agencies have been seen as the major driving force in governance. However, today it is recognized that

good governance on a particular public policy issue or goal needs to involve other key players in society -

- the private or business sector and civil society, particularly non-governmental organizations (NGOs) and

community organizations. There is a third layer in this governance picture -- the international community

of organizations, such as UN agencies, development organizations, and international NGOs (e.g., WWF,

The Nature Conservancy, Conservation International) which are taking on a greater role in biodiversity

conservation at national and sub-national levels, investing in major projects and helping support local

communities and local NGOs.

60 The commitment to good governance has been broadly endorsed by the 2002 World Summit on

Sustainable Development Plan of Implementation (para. 4) and the UN Millennium Declaration. At the

Vth IUCN World Parks Congress in 2003, the concept was formally recognized as a key concept for

protected areas and ―essential for the effective management of protected areas of all types in the 21st

century‖ (WPC Rec. V.16). Some 3000 delegates at that Congress urged all governments and

organizations to recognize the diversity of protected area governance approaches, such as Community

Conserved Areas, indigenous conservation areas and private protected areas, and encourage Parties to

support this diversity, and to promote the adoption of good governance principles among Contracting

Parties to the Convention on Biological Diversity ―in relation to protected areas, such as the rule of law,

participatory decision-making, mechanisms for accountability and equitable dispute-resolution

institutions and procedures‖ (Durban Plan of Action, Target 1). Application of good governance

principles has had the effect of broadening consideration about different governance types or

arrangements for protected areas beyond the traditional government declared and managed public

protected areas. In addition, the concept has highlighted key generic principles important its

implementation whatever the governance type.

61 Governance types and protected areas legal frameworks. In the context of protected areas legal and

institutional frameworks, subject to local circumstances, applying the concept of ‗good governance‘

triggers two tasks for the legal drafter and protected areas manager: l) ensuring that the legal framework

facilitates rather than forecloses other governance types besides the traditional public protected area, and

2) incorporating key principles embodied in the concept itself to improve the quality of governance

generally, whatever the type.

62 IUCN has recognized and promoted the emergence of an increasingly diverse mix of governance

arrangements potentially applicable to all IUCN protected areas categories (WPC Rec. V.17). While

governance options need to take into account tenure rights of the land or resources involved, governance

options go beyond tenure and may be grounded legally in other instruments such as contracts or long-term

agreements (possible Box on Governance vs. Tenure??).


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63 Five broad types have gained support and these may exist in combination at a particular site or

standing alone depending on local conditions:

a) traditional government protected areas (government agencies responsible for decision-making

and enforcement, both centralized and decentralized);

b) co-managed protected areas (with other government entities, NGOs, communities or other stake-

holder groups);

c) private protected areas (PPAs) (areas managed by private sector entities under long-term contract

or outright private ownership with conservation as a primary objective, and in the context of these

guidelines (see Part III) are by legal agreement sufficiently well managed and secure to be

considered part of the national system of protected areas);

d) community-conserved areas (CCAs) (areas governed or managed by indigenous or local

communities for livelihood, cultural and conservation purposes and sufficiently secure in their

conservation status and management objectives to be included in the national system of protected

areas; and

e) transboundary protected areas (TPAs)(where more than one government is involved based on a

legal agreement and management decisions are coordinated and jointly enforced to the extent

possible).

64 The Convention on Biological Diversity Programme of Work on Protected Areas also stresses the

need for countries to recognize and promote effective participation of indigenous and local communities

and relevant stakeholders in existing and potential forms of conservation and to assess their suitability for

achieving biodiversity conservation goals, ―including innovative types of governance for protected areas

that need to be recognized and promoted through legal, policy, financial institutional and community

mechanisms, such as protected areas run by Government agencies at various levels, co-managed protected

areas, private protected areas, indigenous and local community conserved areas‖ (PoW, 1.1.4).

65 This mandate was reiterated and reinforced by the 9th Conference of Parties of the CBD in 2008

which adopted a decision related to review of the Programme of Work on Protected Areas. Among

elements of that decision, the matter of governance was singled out as an area needing special attention,

including the need to recognize in national legislation or other effective means the contribution of co-

managed, private protected areas and indigenous and local community conserved areas as part of the

national protected areas system (Dec. IX.18, para. 6).

66 These initiatives reflect a growing consensus among experts of all disciplines and managers that

protected areas systems which are open to combining these different governance types have increased

potential for being more resilient, responsive and adaptive under various threats to conservation as

countries and the world community strive to reach biodiversity conservation commitments. In addition

they help foster biophysical connectivity essential for conserving biodiversity by providing new

opportunities for adjacent, buffer, and corridor areas under different ownership and compatible

management regimes to be included in the national system of protected areas thus extending potential

beyond what purely government resources might allow.

67 A prerequisite for purposes of protected areas legal frameworks inclusion of new governance types is

their compatible with conservation objectives and management goals of the national protected areas legal

framework in both programme essentials, e.g., management plans, monitoring, providing scientific advice

and designation of responsible institutions as well as fundamentals in legal process for enforcement – i.e.,

offenses, enforcement, due process for the accused, clear penalties, and recovery of costs for damage.

Thus, generic elements associated with national legislation for government protected areas (see Part II)

normally would apply at first glance to these special governance types. In addition, there may be special

considerations that need attention specifically associated with these new governance arrangements that


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need additional legal grounding in order for such special protected areas qualify for inclusion in the

national system of protected areas – the ultimate goal for a national protected areas strategy. These

special considerations involve biophysical, property rights, socio-economic, or geopolitical features of

these new types which have legal implementations. Thus the legal drafter and protected areas manager

need to reflect upon these added elements and the extent to which they may need legal grounding to take

maximum advantage of all opportunities for building a viable and effective national system of protected

areas.

68 Governance operating principles. With respect to underlying principles of ‗good governance‘

whatever the type, five general United Nations principles of good governance were recognized by

participants at the Vth IUCN World Parks Congress both in recommendations and in the resulting Durban

Accord. have received commitment from as a basis for developing their own national principles for

protected areas management: legitimacy and voice (participation), accountability, performance

(institutional responsiveness, effectiveness, efficiency), fairness (equity and the rule of law), and direction

(strategic vision that includes social and cultural factors) (WPC Rec. V.16) (Lockwood, et al, 2006, Ch.

5). In that context, legal drafters, protected areas managers and all others involved in the establishment

and management of protected areas should include special attention to fostering the following elements in

protected areas legal and decision-making processes, to the extent possible:

a) recognition of diverse knowledge systems;

b) openness, transparency, and accountability in decision-making;

c) inclusive leadership;

d) mobilising support from diverse interests, with special emphasis on partners and local and

indigenous communities; and

e) sharing authority and resources and devolving/decentralising decision-making authority

and resources where appropriate.

1.8 Co-management

69 Co-management of protected areas is an approach that has been used through the years for

collaboration and shared responsibilities among government agencies (for example, between the protected

areas agency and police, or other technical departments dealing with conservation, fisheries or land use).

In recent years, the concept has begun to evolve and is rapidly being expanded to partnership

arrangements with other parties outside the formal government structure, namely, local communities,

indigenous peoples, NGOs, user associations, private businesses to landowners.

70 Today, it is a concept much endorsed by IUCN and the international community (Barber, et al, IUCN,

2004). An essential underpinning for the long-term effectiveness of such new extensions is legal

recognition in protected areas legal frameworks. Having promoted partnerships for protected areas since

the 1950s, IUCN participants to the Vth World Parks Congress gave special emphasis on the need to

expand and strengthen provisions to give legal effect to co-managed approaches as a way to increase

public participation and stretch government resources for conservation at a time when public funds are

increasingly limited and global change pressures require more adaptive management and participation of

all stakeholders. The definition for co-managed protected areas adopted by the Vth IUCN World Parks

Congress reflected this expanded approach. It defined co-managed protected areas as ―protected areas (as

per IUCN Management Categories I-VI) where management authority, responsibility and accountability

are shared among two or more stakeholders, including government bodies and agencies at various levels,

indigenous and local communities, non-government organizations and private operators, or even among

different state governments as in the case of transboundary protection‖ (WCP Rec. V.25).


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71 The co-management approach also has been endorsed and emphasized by the Convention on

Biological Diversity, the Millennium Development Goals, and the World Summit on Sustainable

Development Plan of Implementation. In that context, the Vth IUCN World Parks Congress recognized

the need for supportive protected areas legal and policy frameworks if this approach is to be effective. It

called upon international conventions, especially the CBD, governments, organizations, donors, and the

private sector, among other things, to create or strengthen enabling legal and policy frameworks for co-

managed protected areas and specifically to address co-management CBD‘s Programme of Work on

Protected Areas (WCP Rec. V.25c, g).

72 Legal elements related to co-management arrangements for protected areas that need attention in

protected areas legal frameworks include definitions, authority to conclude such expanded partnerships

and under conditions of use, required processes or procedures for negotiation and concluding formal

agreements, and requirements for any such agreements in terms of timeframe and content, incentives,

monitoring, and evaluation conservation goals. An agreement normally sets forth decision-making

powers and responsibilities, obligations, and benefits, sometimes shared, among the identified partners to

undertake specified management roles for the specific conservation objectives involved (such as the ones

identified in the IUCN categories).

1.9 Perpetual Integrity

73 An important, historical feature of publicly-owned protected areas established by national legislation

is the public expectation that protection will be in perpetuity. This is an inherent and broadly accepted

principle. The issue of protecting conservation benefits for the public in perpetuity is no small order

under any circumstances because of the need for staff and resources indefinitely into the future for

monitoring and responding to proposed or perceived violations of the public trust. These challenges are

even more complex and typically need special legal attention when the land is not owned by the public

under two of the governance types noted above – private protected areas and community conserved areas.

Once such types are brought into enter the national system of protected areas, the public expectation is

that these areas will have the same legal security as other public sites in the system.

74 In these two new governance systems, special attention is needed in the protected areas legal

framework to provide basic requirements for ensuring commitments in perpetuity. In so doing, it is

important to separate the issue of perpetual conservation of the nature values of the site and perpetuating

the particular conservation donor or special organization involved. In other words, the commitment to

protect an area in perpetuity should remain with the land even though the entity involved in the

transaction is terminated. Otherwise, conservation expectations and conservation investments of public

resources for the benefit of these two governance approaches cannot be justified. It may be necessary to

conceptualize the possibility that the donor/owner or community group with tenure rights to the area may

expire or be terminated; while the land area – once entered into the national system of protected areas

under national legislation should not have its classification status terminated or weakened because that

would be in violation of the public trust and expectations associated with bring the area into the system.

The same rules for abolishment or amendment of a public protected area necessarily would need to apply

to a private protected area or community conserved area once admitted into the national system.

75 There are programmes in many countries where individuals or groups may voluntarily choose to

undertake conservation actions on their property, for example, for soil or water conservation, or habitat

protection, where the terms are less-than-perpetuity protection [see examples in Box __]. While these

programmes help support national conservation goals in the near term, there is no security or certainty

about conservation goals over the long term.


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76 The principle of perpetual security supports conservation goals and objectives of the major

international conventions which, by the nature of their goals and obligations, can only function and

pursue targets based on assumptions of long-term commitment and perpetual integrity. IUCN, as well,

must work on the premise of perpetual integrity for species, habitats, ecosystems and biodiversity if its

programmes are to survive. This foundation principle is essential for meeting such global and

international law goals as maintaining and restoring the integrity of natural processes and biodiversity;

protecting representative examples of natural landscapes and ecosystems; protecting outstanding, unique,

rare and vulnerable natural features and phenomena.

77 New tools such as deeded covenants running with the land, transfer of ownership to independent

foundations with perpetual duration and long-terms contracts and lease arrangements on a multi-

generational timeframe of 50-100 years are some of the considerations that need to be explored to satisfy

the requirement of perpetual integrity for these emerging governance types.

1.10 Public Participation

78 A global principle that is increasingly recognized by international conventions and policy instruments

as a key element for effective decision-making is the principle of public participation, and especially

meaningful participation of stakeholders and other affected or concerned interests. Among others, Rio‘s

Principle 10 from the 1992United Nations Conference on Environment and Developed calls for public

participation of all concerned citizens, citizen access to public information about the environment and the

opportunity to participate in decision-making processes in matters relating to the environment.

79 For many European countries, the Convention on Access to Information, Public Participation in

Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) adopted by the

members of the United Nations Economic Commission of Europe in 1998, and entered into force in 2001

vastly expanded the concept and associated obligations required of parties with respect to the public

participation principle. As of April 2008, there were 41 countries of Europe which had ratified the

convention. Newly independent Eastern European states are some of the most active in incorporating

principles of this Convention. As appropriate, drafters from countries that are party to Aarhus in

particular will want to refer to that convention to ensure compliance with specific obligations.

80 While every country and jurisdiction needs to tailor public participation processes in ways that

respect and take best advantage of local capacity and practice, there are core elements that need to be

considered. These elements commonly are important to reinforce in the protected areas legal framework

with respect to major decision processes involving protected areas design, establishment, and

management. Elements which protected areas managers need to consider to foster public participation

include:

a. to identify and differentiate stakeholders, their relative interests, legitimacy of claims, and

weight of their concerns at the outset; stakeholder groups may include a range of local

communities, specific resource users, government authorities, non-governmental

organizations, conservation advocates, and businesses;

b. to define problems and objectives of the protected areas system or site jointly with local

people and other stakeholders at the outset in order to set up a process from the same baseline

for further participation;

c. to provide adequate free information to stakeholders in advance of consulting with them so

that their participation is informed, keeping in mind that different stakeholder groups have

different levels of technical expertise and local knowledge;


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d. be sensitive to fair representation of the views of different stakeholder groups so each feels it

was fairly represented in the consultation process; sometimes a group or individual claims to

represent a particular group when this may not always be the case;

e. aim for as objective and fair process as possible when facilitating participation by different

groups; where there is a sense the facilitator is biased it may diminish the genuine efforts and

outcomes;

f. be sensitive to the time and travel constraints of local communities and indigenous peoples

for their options to take time off from work for meetings may be limited without some

consideration of their special needs;

g. foster a process of decision-making that aims for prior informed consent of affected

communities and stakeholders and provides follow-up and feedback so that participation is

viewed and managed as an ongoing and responsive process to stakeholder concerns.

1.11 Social Equity

81 The principle of social equity in the context of protected areas relates to equitable distribution of costs

and benefits of establishment and management protected areas. While its manifestation will vary

depending on the circumstances, effective participation in part should aim to arrive at equitable and long-

lasting compromises through negotiation.

82 The principle has different applications at different levels. At the local level, concerns for equity may

translate into ensuring that local communities living within or adjacent to a protected area do not bear an

undue share of the area‘s costs. There should also be mechanisms, processes, and commitments to

distribute a fair share of any benefits generated. This may require developing new means to monitor,

account for, and distribute benefits locally from such income-generating activities as tourism, recreation,

sustainable use of some renewable resources, education and research. In addition, costs and benefits may

raise issues of future equities or inequities, which need to be considered. At the national level, protected

areas may generate benefits valued by people living far from the protected area but with significant and

genuine interests in its conservation. In general, mechanisms for sharing benefits should aim for long-

term strategies that benefit community-wide interests, unless there is a specific tangible benefit directly

associated with the action of a specific individual or group, for example with respect to a private protected

area.

1.12 Financial Security

83 It is increasingly recognized that one of the major impediments to effective implementation of

protected areas programmes is the lack of adequate financial resources.

84 The Programme of Work on Protected Areas adopted in 2004 by Parties to the Convention on

Biological Diversity (CBD) emphasized this theme, devoting an entire section to the goal of ensuring

―financial sustainability of protected areas and national and regional systems of protected areas‖ (Goal

3.4). It laid out several specific targets and activities to be undertaken by Parties to the CBD including

establishing and beginning to implement by 2008 country-level sustainable financial plans that support

national systems of protected areas, including necessary regulatory, legislative, policy, institutional, and

other measures (para. 3.4.2).

85 In 2006, the 8th Conference of Parties to the CBD, in reviewing progress with implementation of the

Programme of Work on Protected Areas, focused particularly on the growing problem of inadequate

financial capacity for implementation (Decision VIII/24). It identified several options for mobilizing

financial resources, especially for developing countries, including inviting Parties to urgently organize

protected-area financing round-tables of donors and recipient governments to advance progress on


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national and regional sustainable finance strategies (para. 18(a)). It also called upon Parties to design and

elaborate financial plans, that would include carrying out analysis of administrative, legal and

management-related barriers and addressing these in order to create an enabling environment and to

facilitate financial plans (para. 18(e)). The 9th Conference of Parties meeting in Bonn, Germany, in 2008

took up the matter of financial need once again, reiterating options for mobilizing, ‗as a matter of

urgency‘, through different mechanisms, including donors, international agencies, the GEF, and

innovative national initiatives for providing adequate and timely resources for the implementation of the

programme of work (Dec. IX/18, Part B).

86 A number of specific suggestions for elements that could be considered in financial plans were

included in that COP decision with direct relevance to, and in most cases, requiring incorporation in

protected areas or associated legal frameworks in order to be operable (para. 18(f, h)). These included:

a) creating national trust funds to channel such monies as multilateral and bilateral grants,

tourism-based revenues, debt-for-nature swap proceeds, and contributions from non-

governmental organizations;

b) using funding mechanisms connected to socially and environmentally sustainable economic

activities that have direct links to protected areas, while maintaining the integrity of the

protected area and related ecosystems;

c) using and developing funding mechanisms that channel the economic values of ecosystem

services at local, regional and global levels;

d) exploring options for innovative international finance mechanisms to support the programme

of work on protected areas;

e) retention by local or national protected areas management authorities of visitor fees and other

revenues generated from protected areas;

f) increasing, where possible, national and local government budgets for protected areas

management;

g) providing funding mechanisms to support indigenous and local community conserved areas;

h) exploring options, where applicable, for linking protected areas funding to potential

regulatory and voluntary mechanisms for enhancing protected areas funding.

87 The Vth IUCN World Parks Congress also highlighted this concern in its 2003 Durban Action Plan,

including as one its 10 main outcomes the securing of ―greatly increased financial resources for protected

areas (outcome 9). That Congress explicitly recognized that ‗many countries with the highest levels of

biodiversity are challenged by inadequate financial means and by the imperative of poverty alleviation‖

causing compromises with respect to creating and effectively managing a comprehensive protected area

system even when that is not in their national or global interest (WCPA Rec. V.4). In 2000 and again in

2006, IUCN also provided best practice guidance on protected areas financing in publication issued by the

World Commission on Protected Areas (No. 5 and No. 13). Important for protected areas legal

frameworks, the 2000 publication, among other things, calls for development of a financial plan as part of

a business plan for protected areas, all of which would be within the legally-required management

planning hierarchy for protected areas. In that regard, the guidance lays out a conceptual framework of

planning circles, each of which it considers critically important to the success of a protected area (Ch. 3).

In this three-tiered framework –

1. The protected areas management plan provides the essential policy framework for the

business and financial plans by clarifying the management objectives of the protected area,

the relevant users, the financial needs of the protected area and the resources available to the

protected area;

2. This information feeds into the business plan for the protected area, which examines in more

detail the beneficiary group (or customer base, e.g., locals, tourists, downstream beneficiaries,


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global interests, etc.), goods and services, marketing strategy and implementation strategy for

the protected area;

3. This information in turn contributes to the financial plan for the protected area which further

details key assumptions and provides an analysis of where the protected area operations may

be able to generate revenues to off set its expenditures, with income and loss projections, and

how any gaps may be able to be filled.

88 The WCPA 2006 on protected areas financing turns to new tools for supplementing traditional

protected areas financing; these will be highlighted in Part II in a section on financing tools that need

legal and policy support for implementation.

1.13 Precautionary Principle

89 This principle provides that where knowledge is limited, apply the precautionary approach. The

‗precautionary approach‘ or ‗principle‘ provides that lack of certainty regarding the threat of

environmental harm should not be used as an excuse for not taking action to avert that harm. As applied

to biodiversity, the principle was defined and affirmed in the Preamble to the Convention on Biological

Diversity, ―where there is a threat of significant reduction or loss of biological diversity, lack of full

scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a

threat.‖ Since being formally adopted in the 1992 Rio Declaration (Principle 15), the principle has been

incorporated in other international environmental law instruments, including the Framework Convention

on the Climate Change (Art. 3), the Stockholm Convention on Persistent Organic Pollutants (2001), the

Biosafety Protocol under CBD (Art.10), among others.

1.14 Adaptation/Dealing with the Unexpected

90 In an era of global change, protected areas systems and sites need to be designed and managed with a

view to resiliency and capacity to adapt, as best possible with available information, to the range of global

change factors protected areas will increasingly face in the 21st century. As concluded by an IUCN

study in 2004, ―we now live in a world of shifting climates, sea level rise, swelling human populations,

invasions of alien species, shrinking and fragmented habitats, and the myriad processes and pressures of

industrialization and ever-expanding globalized commerce and communities….The challenges are indeed

daunting, but managers must adapt and respond to these new realities, or protected areas as we know

them today will soon cease to exist‖ (Barber, et al, IUCN/2004, p. xv).

91 Adaptive management is a relatively new concept within the field of protected areas and one for

which many countries are not well prepared. It requires special capacity and a supportive legal and policy

framework to deal with the biophysical and socio-economic pressures that will increasingly challenge

protected areas and wild species conservation [see Box 4].

Box 4: Main Global Change Factors facing Conservation of Protected Areas

Planning and managing for global change involves not only understanding and planning for biophysical changes but

also understanding equally momentous socio-economic changes that drive biophysical change. As characterized by

IUCN, main socio-economic changes in the past century include:

unprecedented population growth, having grown from 1.2 billion to 6 billion from 1900 to 2000 (a five-fold

increase) and estimated to be more than 9 billion by 2050, some 60% in cities mostly in coastal areas;

while the global economy has grown at a stunning rate, poverty remains an overwhelming challenge with


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nearly 80% of the world‘s people considered poor;

with humanity appropriating some 40% of the Earth‘s net primary productivity, economic sectors with the

most direct impacts on protected areas include agriculture, livestock raising, fisheries, wood products, trade

in wild products, generation of energy, and appropriation and alteration of freshwater.

Biophysical changes as the result of these socio-economic pressures include:

climate change with global warming resulting in ice and snow cover melt, sea level rise, weather pattern

shifts that are affecting all regions of the world with such impacts on species range, ecosystem functions,

sea surface temperature rise, natural resource-based production systems;

habitat conversion and fragmentation changing the basic context for conservation efforts with only one-

fifth of original forest cover remaining in largely, undisturbed tracts, grasslands have been extensively

converted and half the world‘s wetlands were lost during the 20th

century, resulting in increasingly

fragmented and small patches of natural habitats and negative impacts on species and ecosystems;

alteration of hydrological cycles from fragmentation of rivers, expansion of dams, conversion of wetlands,

pollution, and accelerated human demand for freshwater resulting in changes in natural water flows,

alteration of sedimentation processes and water quality degradation negatively affecting biodiversity and

ecosystem functions of water systems worldwide;

invasive alien species spread by trade and transportation resulting in one of the greatest threats to the

stability and diversity of ecosystems, second only to habitat los, small islands and freshwater ecosystems

particularly at risk;

biodiversity loss with rates of extinction at least 1000 times higher than any time previously in Earth‘s

history, some 20,000 species know to be threatened with extinction with many more likely to be threatened,

key drivers of biodiversity loss including habitat loss and fragmentation, over-exploitation of wild species,

introduction of alien species, pollution, climate change.

[Source: adapted from Barber, C.V., et al, Securing Protected Areas in the Face of Global Change – Issues and Strategies

(IUCN, 2004)

92 In order for managers to have adaptive skills and capacities for management, some of the legal

principles important to include in protected areas legislation can be particularly supportive. This includes

ensuring that protected areas agencies having clear authority to influence policy and decisions relative to

adaptive measures to safeguard core protected areas purposes and values in the most of change, including

authority to participate meaningfully in related other areas of policy such as land use and development

control. Climate change indicators need to be introduced as part of a suite of indicators to monitor the

ecological integrity of a system or site. Protected areas managers also need the authority and resources to

collect real-time information along with monitoring and research to track such indicators to provide early

warning of impacts on protected areas system and sites, mainstream this information into ecosystem

planning and management processes and, as needed, alter management strategies and actions to ensure the

purposes of the protected areas are safeguarded.

93 Management plans need to consider climate change aspects in some of their sites and may need to

include possible scenarios for each biogeographical region or site based on the most likely change factors,

including climate change and increased human pressures, and provide for processes whereby adaptive

actions and strategies can be put into play. To the extent possible, different sites and ecosystems need to

be planned to build in natural resiliency, e.g., by protecting additional areas or providing flexible

boundaries based on modeling and other technical information on species communities and their habitats

and recovery potential. The aim of resiliency in this context is the ability of an ecosystem to recover from

disturbances within a reasonable timeframe. As defined by IUCN, components of resilient protected

areas networks include effective risk spreading through inclusion of replicates of representative habitats,


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full protection of refugia that can serve as reliable sources of seed for replenishment, and connectivity to

link these refugia with vulnerable areas within the network (WPC Rec. V.22).

94 Partnerships need to be anticipated with other institutions in society – particularly NGOs, academic

and research institutions, local communities, and the private sector – to assist with and in many cases take

on special tasks. Engaging partners in collaborative management, including co-management, may be

key to building the skills and capacities needed to change and strengthen management approaches when

new and dynamic change forces present challenges and threats to the existing protected areas system and

sites.

95 Finally, periodic evaluation of management plans and management effectiveness facilitates a

proactive programme that is more likely to respond to and cope with global change factors. Evaluation

and periodic review and revision of core plans and strategies provides an opportunity for learning and

improvement, as well as anticipation of future threats and opportunities. To serve these purposes,

evaluation needs to be built into the overall process of management planning.

1.15 Taking an International Perspective

96 It is recognized that many species of animals migrate over great distances and that natural habitats for

many others are shrinking and becoming increasingly isolated, requiring new approaches such as the use

of conservation corridors within and among countries to facilitate an ecosystem approach to management

and to improve linkages between ecosystems and opportunities for species movement. Climate change

and other global change factors also are accelerating habitat fragmentation and putting species and

habitats at higher risk of vulnerability.

97 While always respecting the fundamental rule of State sovereignty, modern approaches to protected

areas programmes and supporting legal and policy frameworks still need to incorporate a global

perspective to biodiversity conservation and protected areas design, management, information sharing,

monitoring, scientific research, and enforcement.. By the nature of their mandate and scope, several

international conventions and programmes are driven by an international perspective on how well

biodiversity and ecosystem conservation is faring. Some conventions translate this perspective into

measures by which specific goals and obligations are set for individual states, for example, the

Convention on Biological Diversity, Ramsar, the Convention on Migratory Species, the Convention on

International Trade in Endangered Species, the Law of the Sea, several maritime conventions, and the

biosphere reserves programme (all reviewed below). The very concept of transboundary protected areas

triggers this international perspective not only in terms of principles but also in negotiation and

application agreements on management and monitoring and evaluation of objectives and goals..

2. Implementing Multilateral Obligations

98 Of the more than 500 global and regional environmental treaties in force today, several are related to

protected areas, many have come into force since the 1980 Guidelines, and most are not self-executing

but require action within national legal frameworks for implementation and compliance.

99 These international instruments are couched in the fundamental rule of international law that a State

has national sovereign rights over all natural resources in their territory. This means, in the purest sense,

that States have the right to conserve, or exploit, or destroy their natural resources. However, this rule

increasingly is being qualified by agreements and plans that States voluntarily adopt as part of the world

community of nations. In recent decades a consensus has formed among States and the international

community of the need, at the very least, to conserve wild species and the habitats in which they live. This

consensus has crystallized in the form of rules of international law intended to achieve of better balance


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between sovereign rights over natural resources, including the right to destroy them, and the need to

preserve wild species, which gradually was replaced with the broader term ‗biological diversity‘ to

encompass the diversity of ecosystems, species, and genes found on the planet.

100 Qualification of a State‘s sovereign right over natural resources has occurred through many specific

voluntary commitments made by the world community of nations, particularly since the 1980s. Principle

21 of the Stockholm Declaration adopted by the world community at the 1972 United Nations Conference

on the Human Environment articulated State responsibility for environmental actions as well as rights

over their resources; this was reaffirmed, among other instruments, in Principle 2 of the Rio Declaration

adopted at the UN Conference on Environment and Development in 1992 which provides: States have, in

accordance with the Charter of the United Nations and the principles of international law, the sovereign

right to exploit their own resources pursuant to their own environmental and developmental policies, and

the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the

environment of other States or of areas beyond the limits of national jurisdiction.

101 In addition to these statements of principle, States have voluntarily ratified a number of multilateral

conservation treaties which contain specific obligations to conserve natural habitats through the

establishment of protected areas. Some provide precise definitions of the types of areas that their Parties

are required to create, together with specific rules which must be observed. Others merely lay down a

general obligation to preserve natural habitats without specifying the means which must be used to

achieve this result. A few conventions provide for a list of specific sites that Parties commit themselves

to protect. Virtually all modern multi-lateral conservation treaties, agreements and programmes expressly

recognize the need to meaningfully involve and respect the rights of local communities and indigenous

peoples (see more in Part III).

102 This section begins with highlights from these main global conventions and then notes a number of

regional treaties important for national protected areas legal frameworks. The legal drafter and manager

should refer to the actual text of any such Conventions or Agreements when undertaking an assessment of

existing legislative or designing new protected areas legislation to ensure full account of all elements

relevant to their particular situation, as appropriate. Most such international or regional instruments have

web sites with the official text and guidance on implementation.

2.1 Global Environmental Conventions

103 Main international treaties related to protected areas are the Convention on Biological Diversity,

World Heritage Convention, Convention on Migratory Species, the Convention on Protection of

Wetlands of International Importance, especially for waterfowl (RAMSAR). Other major international

law instruments do not have protected areas as a central component but, nevertheless, have important

goals and obligations which protected areas legal frameworks need to take into account or support. These

instruments include the Convention on International Trade in Endangered Species (CITES), the United

Nations Convention on the Law of the Sea, some of the marine environment-oriented conventions of the

International Maritime Organization, all also briefly reviewed below.

2.1.1 Convention on Biological Diversity

104 The Convention on Biological Diversity (CBD) was concluded in 1992 at the United Nations

Conference on Environment and Development in Rio de Janeiro, and entered into force in December

1993. Today 190 of the 192 States of the United Nations are Parties to the Convention, making it the

most widely applied conservation convention worldwide. It has become the driving international law

instrument for conservation of biodiversity, including the use of protected areas as a main tool for that

purpose.


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105 The CBD has three main objectives: biodiversity conservation, sustainable use in its components, and

the fair and equitable sharing of benefits from genetic resources. Because of its broad global scope and

coverage, the Convention Secretariat has taken a lead role in working with Secretariats of other

international and regional environmental agreements to collaborate on programmes and coordinate

reporting.

106 The Convention on Biological Diversity is richly supplemented by numerous guidelines and decisions

of the Conference of Parties including, importantly, the Programme of Work on Protected Areas adopted

by the Parties in 2004, as discussed more below. Together with the Convention text, these subsequent

decision documents provide extensive law and policy guidance the legal drafter and protected areas

manager need to review in the context of assessing legislative needs at national or sub-national level to

ensure full compliance and harmony with the Convention within the protected areas legal framework.

107 Importantly, one of the first areas to review is key definitions provided in the Convention‘s Article 2.

Among the terms defined are several directly relevant for protected areas legislation:

a) ‗biological diversity‘ means the variability among living organisms from all sources

including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological

complexities of which they are a part; this includes diversity within species, between species

and of ecosystems;

b) Biological resources‘ includes genetic resources, organisms or parts, thereof, populations or

any other biotic component of ecosystems with actual or potential use or value for humanity;

c) ‗ecosystem‘ means a dynamic complex of plant, animal and micro-organism communities

and their non-living environment interacting as a functional unit;

d) ‗in situ conservation‘ means the conservation of ecosystems and natural habitats and the

maintenance and recovery of viable populations of species in their natural surroundings and,

in the case of domesticated or cultivated species, in the surroundings where they have

developed their distinctive properties;

e) ‗protected area‘ means a geographically defined area which is designated or regulated and

managed to achieve specific conservation objectives.

108 Substantively, the Convention‘s Article 8 is the primary article devoted to protected areas and in situ

conservation:

a) Article 8 (a), provides that each Party shall, as far as possible and appropriate, establish a

system of protected areas, with emphasis on a system of sites to conserve biodiversity in its

different components.

b) Article 8 (c), requires that Parties regulate or manage biological resources important for the

conservation of biodiversity, whether within or outside protected areas, with a view to

assuring their conservation and sustainable use.

c) Article 8(d) calls for each Party to promote the protection of ecosystems, natural habitats and

the maintenance of viable populations of species in natural surroundings.

d) Article 10, requires that Parties adopt measures to ensure that use of a biological resource

does not harm the overall biodiversity, thereby requiring an ecosystem approach to resource

use and development.

e) Other articles provided expanded obligations beyond protected areas to national strategy

planning activities of a country, requiring adoption of national biodiversity strategies and

plans, and integration of biodiversity conservation and sustainable use into planning and

programs (Articles 6 and 10).


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109 With respect to priorities for protected areas purposes, the Convention Annex 1 provides an indicative

list of categories by which Parties are to identify components of biodiversity for protected areas, as

follows:

1) Ecosystems and habitats: containing high diversity, large numbers of endemic or threatened

species, or wilderness; required by migratory species; of social, economic, cultural or

scientific importance; or, which are representative, unique or associated with key

evolutionary or other biological processes;

2) Species and communities which are: threatened; wild relatives of domesticated or cultivated

species; of medicinal, agricultural or other economic value; or social, scientific or cultural

importance; or importance for research into the conservation and sustainable use of biological

diversity, such as indicator species; and

3) Described genomes and genes of social, scientific or economic importance.

110 Programme of Work on Protected Areas. The Conference of Parties of the Convention on Biological

Diversity at their 6th COP in 2004 adopted a detailed and ambitious Programme of Work on Protected

Areas. In the preamble to their decision, Parties confirmed that efforts to establish and maintain systems

of protected areas and areas where special measures need to be taken to conservation biodiversity –

pursuant to Convention‘s Article 8 on in situ conservation and other relevant articles – are essential for

achieving the objectives of the Convention, the Plan of Implementation of the WSSD, sustainable

development and the attainment of the Millennium Development Goals (para. 1). Incorporating targets

set by the World Summit on Sustainable Development and Vth IUCN World Parks Congress, its overall

objective was the ―establishment and maintenance by 2010 for terrestrial and by 2012 for marine areas of

comprehensive, effectively managed, and ecologically representative national and regional systems of

protected areas that collectively, inter alia, through a global network contribute to the three objectives of

the Convention and the 2010 target to significantly reduce the current rate of biodiversity loss‖ (Dec.

VII/28, para. 18).

111 The Programme of Work is divided into four Programme elements, 16 goals and associated targets

[see Box 5]. Each goal is further divided into several additional suggested activities for the Parties to take

and suggested supportive activities for the CBD Executive Secretary.

112 As such, the Programme of Work is a lengthy, detailed, and exceptionally ambitious, multi-faceted

commitment of most of the states of the world with respect to protected areas expansion and

strengthening, including time-bound targets, some of which expire as early shortly after its adoption for

specific suggested activities. At this writing, progress is being made and work continues in earnest on

implementation of the Programme but results are weak and uneven at best with none of the many

substantive global targets near achievement. A review of implementation by the CBD Conference of

Parties in 2006 found, among other things, limited availability of relevant information, including

insufficient reporting from countries, to be a major shortcoming for the review. Among the findings of

the COP‘s decision was the recognition that lack of implementation and capacity building constraints in

multiple areas was particularly a finding with respect to developing countries (Dec. VIII/24, para. 9).

113 Nevertheless, the CBD Programme of Work on Protected Areas remains the latest official plan of

action for implementation of the strategic plan of the Convention with respect to protected areas and

remains a current, explicit commitment by states not only to advance compliance with CBD‘s legal

obligations concerning protected areas but also to fulfill commitments made in the two sister policy

declarations of a global nature adopted at the start of the decade, as discussed above (see ___), the 2000

Millennium Development Goals and the 2002 WSSD Plan of Implementation.

114 As such, the Programme of Work is highly regarded and widely used as the latest articulation of

national responsibility with respect to protected areas and setting goals that implicate national protected


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areas legal frameworks in a number of respects. This comprehensive agenda of goals and actions, all with

significant implementation challenges, does not include priorities or guidance on ranking leaving it to

each country to decide which avenues to tackle first where resources and capacity are limited.

Nevertheless, virtually none of the programme elements, goals, and targets are possible to achieve

without a supportive legal and policy environment. Thus, it is important for the legal drafter and

protected areas manager working with the legislative process to be completely familiar with the full array

of commitments being made in general.

115 In addition, a number of provisions relate directly to national protected areas legal and policy

frameworks. These provisions fall mainly in Programme Elements 2 and 3. Programme Element 2

relating to ‗governance, participation, equity, and benefit sharing‘, includes suggested activities of the

Parties to recognize and promote a broad set of protected areas governance types which ―should be by

legal and/or policy, financial and community mechanisms‖ (para. 2.1.1), and to establish policies and

institutional mechanisms ―to facilitate the legal recognition and effective management of indigenous and

local community conserved areas‖ (paras. 2.1.1 and 2.1.3). That Programme element also calls on

Parties to promote an enabling environment (legislation, policies, capacities and resources) for

involvement of indigenous and local communities and relevant stakeholders in decision-making, and

development of their capacities and opportunities to establish and manage protected areas, including

community-conserved and private protected areas (para. 2.2.4).

116 The 9th Conference of Parties of the CBD, meeting in Bonn in 2008, reaffirmed the need for Parties to

give special attention to implementation of Programme Element 2 and the several items enumerated in the

Programme itself, as highlighted above(Dec. IX/18). Among these, it reiterated the need to improve and

where necessary diversify and strengthen protected-areas governance types, and for Parties to recognize

the contribution co-managed protected areas, private protected areas, and indigenous and local

community conserved areas within the national protected area system through acknowledgement in

national legislation or other effective means (para. 6).

117 Programme Element 3 related to ‗enabling activities‘ contains the bulk of the broad-based activities

related to protected areas and associated legal frameworks that Parties are asked to undertake in order to

implement the goal of providing ―an enabling policy, institutional and socio-economic environment for

protected areas‖ (Goal 3.1). These activities include:

a) By 2006, identify legislative and institutional gaps and barriers that impede effective

establishment and management of protected areas, and by 2009 effectively address these gaps

and barriers;

b) Adopt legal frameworks to national, regional, and sub-national protected areas systems of

countries where appropriate.

c) Develop national incentive mechanisms and institutions and legislative frameworks to

support the establishment of the full range of protected areas that achieve biodiversity

conservation objectives including on private lands and private reserves where appropriate;

d) Harmonize sectoral policies and laws to ensure that they support the conservation and

effective management of the protected area system;

e) Consider governance principles, such as the rule of law, decentralization, participatory

decision-making mechanisms for accountability and equitable dispute resolution institutions

and procedures;

f) Identify and remove perverse incentives and inconsistencies in sectoral policies that increase

pressure on protected areas, or take action to mitigate their perverse effects; whenever

feasible redirect these to positive incentives for conservation;


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g) Identify and establish positive incentives that support the integrity and maintenance of

protected areas and the involvement of stakeholders, local communities and indigenous

peoples in conservation;

h) Cooperate with neighbouring countries to establish an enabling environment for

transboundary protected areas and for neighbouring protected areas across national

boundaries and other similar approaches including regional networks.

Box 5: CBD Programme of Work on Protected Areas – A Summary of Programme Elements,

Main Goals, and Associated Targets

Programme Element 1: Direct actions for planning, selecting, establishing, strengthening, and managing

protected area systems and sites.

Goal 1.1 To establish and strengthen national and regional systems of protected areas integrated into a global

network as a contribution to globally agreed goals.

Target: establish by 2010 terrestrially, and by 2012 in the marine area, a global network of comprehensive,

representative and effectively managed national and regional protected area system.

Goal 1.2: To integrate protected areas into broader land- and seascapes and sectors so as to maintain ecological

structure and function.

Target: By 2015, all protected areas and protected area systems are integrated into the wider land- and

seascapes, and relevant sectors, by applying the ecosystem approach and taking into account ecological connectivity

and the concept, where appropriate, of ecological networks.

Goal 1.3: To establish and strengthen regional networks, transboundary protected (TBPAs) and collaboration

between neighbouring protected areas across national boundaries.

Target: Establish and strengthen by 2010/2012 transboundary protected areas, other forms of collaboration

between neighbouring protected areas across national boundaries and regional networks, to enhance the

conservation and sustainable use of biological diversity, implementing the ecosystem approach and improving

international cooperation.

Goal 1.4: To substantially improve site-based protected area planning and management.

Target: All protected areas have effective management in existence by 2012, using participatory and science-

based site planning processes that incorporate clear biodiversity objectives, targets, management strategies and

monitoring programmes, drawing upon existing methodologies and a long-term management plan with active

stakeholder involvement.

Goal 1.5: To prevent and mitigate the negative impacts of key threats to protected areas.

Target: By 2008, have in place effective mechanisms for identifying and preventing, and/or mitigating the

negative impacts of key threats to protected areas.

Programme Element 2: Governance, participation, equity, and benefit sharing.

Goal 2.1: To promote equity and benefit-sharing.

Target: Establish by 2008 mechanisms for the equitable sharing of both costs and benefits arising from the

establishment and management of protected areas.

[important legal mandates within this goal, see main text above]

Goal 2.2: To enhance and secure involvement of indigenous and local communities and relevant stakeholders.

Target: Full and effective participation by 2008, of indigenous and local communities, in full respect of their

rights and recognition of their responsibilities, consistent with national law and applicable international obligations,

and participation of relevant stakeholders, in management of existing and the establishment and management of new

protected areas.


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Programme Element 3: Enabling activities.

Goal 3.1: To provide an enabling policy, institutional and socio-economic environment for protected areas.

Target: By 2008, review and revise policies as appropriate, including use of social and economic valuation and

incentives, to provide a supportive enabling environment for more effective establishment and management of

protected areas and protected areas systems.

[important legal mandates within this goal, see main text above]

Goal 3.2: To build capacity for the planning, establishment and management of protected areas.

Target: By 2010, implement comprehensive capacity building programmes and initiatives to develop

knowledge and skills at individual, community and institutional levels, and raise professional standards.

Goal 3.3: To develop, apply and transfer appropriate technologies for protected areas.

Target: By 2020, substantially improve the development, validation, and transfer of appropriate technologies

and innovative approaches for effective management of protected areas, taking into account decisions of the

Conference of the Parties n technology transfer and cooperation.

Goal 3.4: To ensure financial sustainability of protected areas and national and regional systems of protected

areas.

Target: By 2008, secure sufficient financial, technical and other resources to meet the costs to effectively

implement and manage national and regional systems of protected areas, including both from national and

international sources, particularly to support the needs of developing countries and countries with economies in

transition and small island developing States.

Goal 3.5: To strengthen communication, education and public awareness.

Target: By 2008, significantly increase public awareness, understanding and appreciation of the importance

and benefits of protected areas.

Programme Element 4: Standards, assessment, and monitoring.

Goal 4.1: To develop and adopt minimum standards and best practices for national and regional protected areas

systems.

Target: By 2008, standards, criteria, and best practices for planning, selecting, establishing, managing and

governance of national and regional systems of protected areas are developed and adopted.

Goal 4.2: To evaluate and improve the effectiveness of protected areas management.

Target: By 2010, Parties are to adopt and implement frameworks for monitoring, evaluating and reporting

protected areas management effectiveness at sites, national and regional systems, and transboundary protected area

levels.

Goal 4.3: To assess and monitor protected areas status and trends.

Target: By 2010, establish national and regional systems to enable effective monitoring of protected-area

coverage, status and trends at national, regional and global scales, and to assist in evaluating progress in meeting

global biodiversity targets.

Goal 4.4: To ensure that scientific knowledge contributes to the establishment and effectiveness of protected

areas and protected area systems.

Target: Further develop scientific knowledge relevant to protected areas as a contribution to their

establishment, effectiveness, and management.

(Abstracted from CBD Programme of Work on Protected Areas, online at <http.//www.cbd.int./protected>, click on link to

Decision VII/28)

118 Programme of Work for Marine and Coastal Biodiversity Conservation. The CBD Conference of

Parties also has adopted guidance and made commitments specifically with respect to marine and coastal


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biodiversity conservation. The first Conference of Parties (COP) in 1995 identified marine and coastal

biodiversity as a priority and adopted the Jakarta Mandate on Marine and Coastal Biological Diversity

expressing that was issued to that effect.

119 Subsequent COPs adopted a work programme and made other decisions to take action on this issue,

including on marine and coastal protected areas. One of these outputs in 2004 was a technical paper by

an ad hoc technical expert group on marine and coastal protected areas on establishment and management

of a national system of marine and coastal protected areas (MCPAs) (CBD Tech. Paper No. 13). That

technical report stresses that protected areas are an essential element of the management of biological

diversity and for ―coastal countries, MPCAs are essential to provide a complete protected area network

covering all ecosystems‖ (p. 9). It reaffirmed that the ―Convention requires Parties to protect or restore

ecosystems, natural habitats and species populations….[ that] MPCAs represent one method to provide

that protection or to allow natural recovery of degraded resources…[and] they provide the only method to

maintain marine ecosystems in a truly natural state‖ (p. 9). International guidance and national legislative

elements for marine protected areas is the focus of Part III, Chapter 1, of these guidelines.

2.1.2 World Heritage Convention

120 The World Heritage Convention (WHC) is one of the most important international law instruments to

inform national protected areas legal frameworks where sites of significant natural or cultural (or mixed)

value are involved. As of November 30, 2007, 185 of the 192 countries of the United Nations were Party

to the Convention, making it one of the most widely applied conservation convention. The Convention

(formally titled Convention concerning the Protection of World Cultural and Natural Heritage) was

adopted by the General Conference of UNESCO on 16 November 1972, following proposals presented at

the 1972 United Nations Conference on Human Environment in Stockholm, and entered into force in

1975.

121 The Convention establishes an intergovernmental committee, comprised of 16 States Parties and

called the World Heritage Committee, responsible for its overall implementation. A ‗World Heritage

List‘ established by the Committee based on nominations and extensive documentation lists properties

forming part of the cultural and natural heritage of the world considered to have outstanding universal

value. As of this writing, the World Heritage List includes 851 properties --- 660 cultural, 166 natural

and 25 mixed properties in 141 States Parties. Once a site has been included on the World Heritage List

by consent of the country concerned, the country has the obligation to maintain the property in an

effective protective status. Where operations of a country have not been able to maintain its conservation

objectives and it is threatened with serious deterioration, the Committee may enter the site on a ‗List of

World Heritage in Danger.‘ The List of World Heritage in Danger is designed to inform the international

community of conditions which threaten the very characteristics for which a property was inscribed on

the World Heritage List, and to encourage corrective action. As of this writing, 30 sites were on this list.

122 The primary purpose of the WHC, as stated in its preamble, is to establish an effective system of

collective protection of the cultural and natural heritage of outstanding universal value worldwide,

organized on a permanent basis and in accordance with modern scientific methods (preamble). Several of

the Convention‘s provisions are essential reference points for the legal drafter and protected areas

manager in determining what elements need to be grounded in national protected areas legal frameworks.

These are highlighted below. The full text of the Convention along with its Operational Guidelines

should be consulted in-depth for specific application when legal drafting efforts are underway.

123 Definitions are the first important elements for attention. Article 2 states that ‗natural heritage‘ is:


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a) natural features consisting of physical and biological formations or groups of such

formations, which are of outstanding universal value from the aesthetic or scientific point of

view;

b) geological and physiographical formations and precisely delineated areas which constitute the

habitat of threatened species of animals and plants of outstanding universal value from the

point of view of science or conservation;

c) natural sites or precisely delineated natural areas of outstanding universal value from the

point of view of science, conservation or natural beauty.

d) Because cultural heritage sites frequently are located in areas of natural heritage, thus

recreated a mix heritage site, and also because some protected areas legal frameworks may

encompass cultural heritage, it is worth noting the Convention definition of ‗cultural heritage‘

in Article 1;

e) monuments: architectural works, works of monumental sculpture and painting, elements or

structures of an archaeological nature, inscriptions, cave dwellings and combinations of

features, which are of outstanding universal value from the point of view of history, art or

science;

f) groups of buildings: groups of separate or connected buildings which, because of their

architecture, their homogeneity or their place in the landscape, are of outstanding universal

value from the point of view of history, art or science;

g) sites: works of man or the combined works of nature and man, and areas including

archaeological sites which are of outstanding universal value from the historical, aesthetic,

ethnological or anthropological point of view (italics added).

124 With respect to these sites of outstanding universal value, as defined above, several substantive

Articles sets out obligations of States Parties, in particular, to identify and delineate such properties (Art.

3); take appropriate legal and other measures necessary to identify, protect, conserve, and rehabilitate

them (Art. 5); avoid deliberate measures that might damage directly or indirectly this heritage (Art. 6),

and in reports to UNESCO give information on the legislative and administrative provisions adopted for

application of the Convention (Art. 29). States Parties also shall endeavor to adopt policy to integrate

heritage protection into planning, undertake scientific and technical conservation research and adopt

measures which give this heritage a function in the life of the community (Art. 5).

125 Operational Guidelines issued by the World Heritage Committee set forth more detailed procedures

and guidance for implementation of the Convention. The Guidelines include several paragraphs with

direct legal and institutional implications, for example:

a) All properties in the World Heritage List must have adequate long-term legislative,

regulatory, institutional and/or traditional protection and management to ensure their

safeguarding and nominated properties also must have adequate protection;

b) Adequate delineation of boundaries is an essential requirement for protection of listed and

nominated properties:

c) Legislative and regulatory measures at national and local levels should assure the survival of

the property and its protection against development and change that might negatively impact

the outstanding universal value of the property;

d) Wherever necessary for the proper conservation of a listed or nominated property, an

adequate buffer zone with precise boundaries also should be provided with complementary

legal and/or customary restrictions to protect the property;

e) Each nominated property needs an appropriate management plan, or other documented

management system specifying how the property‘s outstanding heritage values should be

preserved;


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f) For transboundary properties, it is recommended that nominations are submitted jointly by all

concerned States Parties and that a joint management body be established to oversee

management of the property as a whole.

126 For legal drafters working on protected areas legislative frameworks where there is a potential or

actual site under the World Heritage Convention, the operational guidelines also lay out the criteria such a

property must meet to be considered by the World Heritage Committee as having outstanding universal

value (para. 77). These criteria are helpful aids in designing language in legislation relative to goals and

objectives that may be worth including (see Part II below). Such natural heritage sites should include:

a) contain superlative natural phenomena or areas of exceptional natural beauty and

aesthetic importance;

b) be outstanding examples representing major stages of earth‘s history, including the record

of life, significant on-going geological processes in the development of landforms, or

significant geomorphic or physiographic features;

c) be outstanding examples representing significant on-going ecological and biological

processes in the evolution and development of terrestrial, fresh water, coastal and marine

ecosystems and communities of plants and animals;

d) contain the most important and significant natural habitats for in-situ conservation of

biological diversity, including those containing threatened species of outstanding

universal value from the point of view of science or conservation.

127 In addition, the guidelines require that the property have an effective management plan or other

documented management system in place the purpose of which is to ensure effective protection of the

property for present and future generations. While the guidelines recognize the diversity of management

systems possible in order to reflect the specific circumstances and needs of each property, they lay out

several common elements an effective management system could include (para. 108). These elements

give further guidance to the legal drafter when formulating legal provisions on management plan

requirements (as discussed above). They are:

a) a thorough shared understanding of the property to all stakeholders,

b) a cycle of planning, implementation, monitoring, evaluation, and feedback;

c) involvement of partners and stakeholders;

d) allocation of necessary resources;

e) capacity-building; and

f) an accountable, transparent description of how the management system functions.

128 With respect to marine sites, the Guidelines define property of outstanding universal value to include

outstanding examples representing significant ongoing ecological and biological processes in the

evolution and development of coastal and marine ecosystems and communities of plants and animals.

With only 31 of the World Heritage sites including marine areas, the World Heritage Committee

approved a World Heritage Marine Programme in 2005 to more aggressively to promote nomination of

large-scale marine areas and MPA networks, including of serial and transboundary nominations.

129 This Marine Programme was preceded in 2002 by a World Heritage Marine Biodiversity Workshop

where coastal and marine science experts from around the world assembled under the auspices of the

World Heritage Convention to promote nominations of tropical coastal, marine, and small island

ecosystems. The workshop was in recognition of the under-representation of these ecosystems in the

World Heritage List and was focused on remedying this by identifying potential marine areas.

Participants from around the world recommended to the World Heritage Committee, among other things,

that ―immediate steps be taken to enhancing global marine conservation efforts by improving the


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coverage and geographic representation of tropical marine, coastal and small island ecosystems of

Outstanding Universal Value as World Heritage Sites,‖ and that ―other mechanisms, such as Biosphere

Reserves, Ramsar site designations and marine protected area networks should be applied to strengthen

and complement the World Heritage Convention and give international recognition to important marine

sites.‖ (Hillary, 2004)

130 In a related subject, in 2001 the General Conference of UNESCO adopted a separate Convention on

the Protection of the Underwater Cultural Heritage, not yet in force. Among the purposes of this

Convention is to strengthen protection and preservation in situ of underwater cultural heritage together

with its natural context. [See Box 6, perhaps move to Part III, Ch. 1 on MPAs]

Box 6: Convention on the Protection of the Underwater Cultural Heritage

Recognizing the urgent need to preserve and protect underwater cultural heritage, UNESCO in 2001

elaborated the Convention on the Protection of Underwater Cultural Heritage. Sixteen states have ratified

the convention to date; 20 ratifications are required for entry into force.

For countries which have already ratified or anticipate doing so, the legal drafter working with the

protected areas legal framework should review provisions of this convention with respect to obligations

under national law for marine protected areas where is a possible current or future sites could contain

underwater cultural heritage as defined by the Convention. ‗Underwater cultural heritage‖ is defined to

mean all traces of human existence having a cultural, historical or archaeological character which have

been partially or totally under water, periodically or continuously, for at least 100 years such as:

For countries which have already ratified or anticipate doing so, the legal drafter working with the

protected areas legal framework should review its provisions in the context of national law where marine

protected areas are involved that may include sites of underwater cultural heritage. Under the convention,

‗underwater cultural heritage means all (a) ―Underwater cultural heritage‖ means all traces of human

existence having a cultural, historical or archaeological character which have been partially or totally

under water, periodically or continuously, for at least 100 years such as:

(i) sites, structures, buildings, artifacts and human remains, together with their archaeological and

natural context;

(ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their

archaeological and natural context;

(iii) objects of prehistoric character.

The Convention consists of a main text and an annex, which sets out the "Rules for activities directed

at underwater cultural heritage" It‘s main principles include an obligation to preserve underwater cultural

heritage and take action according to their capabilities. It also considers in situ conservation of

underwater cultural heritage (i.e., in its original location) the first and preferred option.

(Source: abstracted from Convention text online at <http://portal.unesco.org/culture>).

2.1.3 Convention on Conservation of Migratory Species (CMS)


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131 The Convention on Conservation of Migratory Species (CMS) was concluded in 1979, entered into

force in 1983, and as of March 2008 had 108 Parties. Its main objective is to conserve migratory species

of wild animals throughout their ranges. Under the Convention, Parties acknowledge the importance of

migratory species being conserved and of Range States agreeing to take action to this end whenever

possible and appropriate, paying special attention to migratory species the conservation status of which is

unfavourable, and taking individually or in co-operation appropriate and necessary steps to conserve such

species and their habitat, and the need to take action to avoid any migratory species becoming endangered

(Art. II). Appendix I includes several endangered species of marine turtles, marine mammals including

seals, dolphins, porpoises and whales, and migratory birds. The legal drafter could refer to the CMS web

site for the latest agreements in force under the Convention.

132 With respect to specific Convention obligations, Parties endeavor to provide immediate protection for

migratory species included in Appendix I (species already threatened with extinction); and conclude

cooperative regional Agreements covering the conservation and management of migratory species

included in Appendix II (other species needing protection to improve their conservation status).

133 More specifically for endangered species listed in Appendix I, Parties that are Range States shall

endeavor:

a) to conserve and, where feasible and appropriate, restore those habitats of the species

which are of importance in removing the species from danger of extinction;

b) to prevent, remove, compensate for or minimize, as appropriate, the adverse effects of

activities or obstacles that seriously impede or prevent the migration of the species;

c) to the extent feasible and appropriate, to prevent, reduce or control factors that are

endangering or are likely to further endanger the species, including strictly controlling the

introduction of, or controlling or eliminating, already introduced exotic species; and

d) to prohibit the taking of animals belonging to such species, with exceptions allowed only

for scientific research, to enhance survival, or for traditional subsistence so long as such

taking does not disadvantage the species (Art. III).

134 Parties which are Range States for migratory species listed in either Appendix I or Appendix II are

required to inform the Conference of the Parties through the Secretariat, at least six months prior to each

ordinary meeting of the Conference, on measures that they are taking to implement the provisions of this

Convention for species listed in Appendix I or II (Art. VI).

135 The legal drafter should take special note of a number of definitions provided by the Convention

which are important to incorporate, as appropriate, in national protected areas legal frameworks. As

provided in Article 1 of the Convention, these include:

a) ‗migratory species‘ is defined as the entire population or any geographically separate part

of the population of any species or lower taxon of wild animals, a significant proportion

of whose members cyclically and predictably cross one or more national jurisdictional

boundaries.

b) ‗Conservation status of a migratory species‘ means the sum of the influences acting on

the migratory species that may affect its long-term distribution and abundance.

c) ‗Range State‘ in relation to a particular migratory species means any State (and where

appropriate any other Party referred to under subparagraph (k) of this paragraph) that

exercises jurisdiction over any part of the range of that migratory species, or a State, flag

vessels of which are engaged outside national jurisdictional limits in taking that

migratory species.


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d) ‗Habitat‘ means any area in the range of a migratory species which contains suitable

living conditions for that species.

e) ‗Taking‘ means taking, hunting, fishing capturing, harassing, deliberate killing, or

attempting to engage in any such conduct.

136 Convention bodies for both the CBD and CMS concluded a Joint Work Programme for the period

2006-2008 which was adopted by the CMS Conference of the Parties at its 8th Meeting in November

2005. Under that joint work programme, the Convention bodies agreed to a thematic framework that

includes protected areas, including networks. Among the initial activities to be undertaken by these

bodies within this framework to consider the ―experience gained using CMS Agreements as catalysts for

networks of protected areas between countries to conserve migratory and other species, as well as their

habitats‖ (CMS Res. 8.18, Annex III, para. 3).

2.1.4 Convention on Wetlands of International Importance (Ramsar)

137 Ramsar was concluded in 1971 and came into force in 1975, currently with 158 Contracting Parties.

The official name of the treaty, The Convention on Wetlands of International Importance especially as

Waterfowl Habitat, reflects the original emphasis upon the conservation and wise use of wetlands

primarily as habitat for water birds. Over the years, however, the Convention has broadened its scope of

implementation to cover all aspects of wetland conservation and wise use, recognizing wetlands as

ecosystems that are extremely important for biodiversity conservation and for the well-being of human

communities, thus fulfilling the full scope of the Convention text. For this reason, the short form of the

treaty‘s title, the ―Convention on Wetlands‖, is increasingly the common usage.

138 This convention has as its primary objective the protection of wetlands for their fundamental

ecological functions as regulators of water regimes and as habitats supporting flora and fauna, especially

waterfowl – defined as birds ecologically dependent on wetlands. Ramsar contains a number of important

other definitions for national consideration within protected areas legal frameworks. Principally,

‗wetlands‘ is defined as areas of marsh, fen, peatland or water, whether natural or artificial, permanent or

temporary, with water that is static or flowing, fresh, brackish or salt, and includes areas of marine water

the depth of which at low tide does not exceed six meters. ‗Wise Use‘ was defined in 1987 by the 3rd

Conference of Parties as sustainable use for the benefit of humankind in a way compatible with the

maintenance of the natural properties of the ecosystem, and further that such ‗wise use‘ may also require

strict protection so that it may yield the greatest continuous benefit to present generations while

maintaining its potential to meet the needs and aspirations of future generations (COP Rec. 3.3). ‗Natural

properties of the ecosystem‘ was defined at that same COP as those physical, chemical and biological

components, such as soil, water, plants, animals and nutrients, and the interactions between them.

139 Parties to the Convention have four main legal obligations, as summaries in the Ramsar web site. The

first obligation is for a Party to designate at least one wetland at the time of accession for inclusion in the

List of Wetlands of International Importance (the ―Ramsar List‖) and to promote its conservation, and in

addition to continue to ―designate suitable wetlands within its territory‖ for the List (Article 2.1).

Selection for the Ramsar List should be based on the wetland‘s significance in terms of ecology, botany,

zoology, limnology, or hydrology. The Contracting Parties have developed specific criteria and guidelines

for identifying sites that qualify for inclusion in the Ramsar List. The ―flagship‖ of the Convention is this

List of Wetlands of International Importance (the ―Ramsar List‖) – presently, the Parties have designated

for this List more than 1,675 wetlands for special protection as ―Ramsar sites‖, covering 151 million

hectares.

140 Associated with this obligation, each Party commits itself ―to arrange to be informed at the earliest

possible time if the ecological character of any wetland in its territory and included in the List has


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changed, is changing or is likely to change as the result of technological developments, pollution or other

human interference (Art. 3.2). Information on such changes shall be passed without delay‖ to the Ramsar

Secretariat.

141 Second, there is a general obligation for the Contracting Parties to include wetland conservation

considerations in their national land-use planning. They have committed themselves to formulate and

implement this planning so as to promote, as far as possible, ―the wise use of wetlands in their territory‖

(Article 3.1). The Conference of the Contracting Parties has approved guidelines on how to achieve

―wise use‖, which has been interpreted as being synonymous with ―sustainable use‖. The COP has also

adopted detailed guidance on the development of National Wetland Policies and on management planning

for individual wetland sites.

142 Third, contracting Parties have a general obligation (under Article 4) to establish nature reserves in

wetlands, whether or not they are included in the Ramsar List, and they are expected to promote training

in the fields of wetland research, management and wardening.

143 Fourth, there is an obligation for international cooperation under Article 5, where Contracting Parties

have agreed to consult with other Contracting Parties about implementation of the Convention, especially

in regard to transboundary wetlands, shared water systems, and shared species.

2.1.5 Convention on International Trade in Endangered Species (CITES)

144 CITES (formally the Convention on International Trade in Endangered Species of Wild Fauna and

Flore) was concluded in 1973, entered into force in 1975; currently 172 countries are Parties to CITES.

This convention aims to ensure that international trade in specimens of wild animals and plants does not

threaten their survival. Because trade in wild animals and plants, including marine life, crosses borders

between countries, the effort to regulate it requires international cooperation and collaborative action

among nations to safeguard certain species from over-exploitation. CITES was conceived in the spirit of

such cooperation. Today, it accords varying degrees of protection to more than 30,000 species of animals

and plants. The species are grouped and listed in Appendices according to how threatened they are by

international trade (Appendix I species are generally prohibited from trade, and Appendix II and III

allowed only under controlled circumstances) Listed species include some whole groups, such as

primates, cetaceans (whales, dolphins and porpoises), sea turtles, parrots, corals, cacti and orchids. But in

some cases only a subspecies or geographically separate population of a species (for example the

population of just one country) is listed.

145 A country‘s legal obligations under CITES are relevant to protected areas legal frameworks because

protected areas provide critical habitat for species protected by CITES in international trade. In

particular, they provide habitat protection and can help enforce trade controls through legal provisions for

protected areas prohibiting taking of species covered by CITES thus reinforcing the goals of CITES while

pursuing biodiversity conservation. Thus, it is important that the legal drafter be well briefed by protected

areas managers on listed CITES species which may be found along with their habitats in existing or

proposed protected areas in order that legislative language can clearly indicate their protective status and

significant penalties for illegal taking.

146 CITES is one of the earliest of the modern conservation conventions. Over the years, it has

concluded a number of memoranda of understanding for cooperation with other international bodies,

including the Convention on Biological Diversity and the Convention on Migratory Species, as well as

international organizations such as IUCN and FAO. This is beneficial for harmonizing implementation

support and guidance to countries which may be Parties to these agreement in the area of protected areas.


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2.1.6 United National Convention on the Law of the Sea (UNCLOS)

147 The present Law of the Sea Convention was concluded in December 1982, after some ten years of

negotiation. It entered into force in November 1994 and presently 155 States are Parties to the

Convention. The Convention is exceptionally broad in scope. It is directly relevant for protected areas

legal attention particularly with respect to legal frameworks for marine protected areas. Two aspects of

the Convention are important to note specifically in this regard.

148 First, the Convention (in Parts II, V, and VI0 defines boundaries of each part of the sea under national

jurisdiction – territorial sea, continental shelf, contiguous and exclusive economic zones, and the legal

regime applicable thereto (discussed again in Part III, Chapter 1, in relate to marine protected areas).

States are fully sovereign over their ‗internal waters‘ defined as all waters landward of the normal

baseline, the low water mark along the coast, and usually as far as the high water mark or the salinity limit

of the river mouth.

149 Next comes the ‗territorial sea‘ which may extend to a distance of twelve nautical miles from the

baseline, an area considered similar to the internal waters in terms of State sovereignty, subject to

innocent passage of foreign ships which can be regulated by establishing, for example, sea lanes. Coastal

states also have sovereign rights over the continental shelf and its natural resources as far as the outer

limit of the shelf, the shelf defined as comprising the sea-bed and sub-soil of the submarine areas that

extend beyond the territorial sea.

150 A further zone contiguous to the territorial sea, called the contiguous zone, is defined not to extend

beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. In

this zone, coastal states may exercise necessary control to prevent and punish infringement of its customs,

fiscal, immigration or sanitary laws and regulations that apply within its territorial sea.

151 Finally, coastal states are entitled under the Convention to claim an Exclusive Economic zone (EEZ),

the last zone before the high sea. EEZs extend beyond the limit of the territorial sea to a maximum of 200

nautical miles from the baseline. Where the continental shelf of a coastal state goes beyond the EEZ,

sovereign rights extent to the limit of the shelf. Within the EEZ, coastal states have sovereign rights,

among other things, for managing the natural resources found therein, including fisheries, and the

responsibility for preserving the marine environment.

152 Second, Part XII of the Convention addresses issues of marine conservation and control of marine

pollution. It imposes the general obligation upon States to ―protect and preserve the marine environment‖

and to take ―all necessary measures to prevent, reduce and control pollution from any source, including

land based sources, pollution from or through the atmosphere, pollution from vessels, pollution from

shipping….‖(Arts. 192-194). Further, LOS Article 197 requires state cooperation on a global or regional

basis in formulating and elaborating rules, standards and recommended practices consistent with the

Convention ―for the protection and preservation of the marine environment, taking into account

characteristic regional features.‖ This latter Article, in particular, suggests a clear mandate for countries

to actively participate in regional programmes and agreements to protect the marine environment.

153 The Fish Stocks Agreement under UNCLOS, formally titled The Agreement for the Implementation

of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating

to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995),

this instrument also is relevant to marine protected areas. With its goal of long-term sustainable use of

straddling and highly migratory fish species, it requires States, among other things, to protect biodiversity

and the marine environment, and calls for the precautionary approach in resource use.


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2.1.7 International Maritime Organization (IMO) Conventions

154 For purposes of marine protected areas, three conventions coordinated by the International Maritime

Organization (IMO) have relevance for the legal drafter. These relate to obligations of states to prevent

pollution from ships and opportunities to IMO to help support national efforts in marine conservation by

giving protective designations to some special sites for purposes with respect to international maritime

activities.

155 The International Convention for the Prevention of Pollution from Ships, 1973, modified by the

Protocol of 1978 (MARPOL 73/78) is one of the main convention regulating and preventing marine

pollution by ships. It covers accidental and operational oil pollution as well as pollution by chemicals,

goods in packaged form, sewage, garbage and air pollution. In Annexes I Prevention of pollution by oil,

II Control of pollution by noxious liquid substances and V Prevention of pollution by garbage from ships,

MARPOL defines certain sea areas as special areas in which, for technical reasons relating to their

oceanographic and ecological condition and to their sea traffic, the adoption of special mandatory

methods for the prevention of sea pollution is required. Under the Convention, these special areas are

provided with a higher level of protection than other areas of the sea. Guidelines for designation of

Special Areas under MARPOL 73/78 were adopted by the IMO Assembly in 2001.

156 The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter,

1972, generally known as the ‗London Convention‘, and the 1996 Protocol (which went into force in

March 1996) are the second international law instruments of interest. The 1996 Protocol represents a

major change of approach to the question of how to regulate the use of the sea as a depository for waste

materials in that, in essence, dumping is prohibited, except for materials on an approved list. This

contrasts with the 1972 Convention which permitted dumping of wastes at sea, except for those materials

on a banned list. The 1996 Protocol (Art. 3) also introduces the "precautionary approach", requiring that

"appropriate preventative measures are taken when there is reason to believe that wastes or other matter

introduced into the marine environment are likely to cause harm even when there is no conclusive

evidence to prove a causal relation between inputs and their effects."

157 Finally, in addition to the guidelines for ‗special areas‘ of the marine environment under MARPOL,

the IMO Assembly in 2001 also adopted a set of guidelines for identification and designation of

Particularly Sensitive Sea Areas (PSSAs) (A.927(22)). These guidelines adopted by IMO Assembly

Resolution (A.927(22)) include criteria to allow marine areas to be designated a PSSA if they fulfill a

number of criteria, including: ecological criteria, such as unique or rare ecosystem, diversity of the

ecosystem or vulnerability to degradation by natural events or human activities; social, cultural and

economic criteria, such as significance of the area for recreation or tourism; and scientific and educational

criteria, such as biological research or historical value. A PSSA is defined as an area that needs special

protection through action by IMO because of its significance for recognized ecological or socio-economic

or scientific reasons and which may be vulnerable to damage by international maritime activities. Such

areas can be proposed by a member State of IMO and designation is at the multilateral level. It may

cause changes in ship routing, discharge restrictions, and other operational issues under the competence of

IMO.

2.2 Sampling of Regional instruments

158 Regional environmental law instruments may provide important commitments and guidance for

national legislation in protected areas for the countries involved. Commonly these commitments, as with

commitments made in international law, are not self-executing but need national legislative action for

implementation. Thus, the legal drafter and protected areas manager need to identify and incorporate


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such regional commitments as well when working to strengthen or develop new protected areas

legislation.

159 There are numerous regional law instruments operating worldwide. For illustrative purposes, five

broad-based regional environmental treaties are highlighted because of their direct relevance for protected

areas. The first four are dedicated to conservation of nature and natural resources. Starting with the most

recent, they are the African Convention on the Conservation of Nature and Natural Resources (2003), the

ASEAN Agreement on Conservation of Nature and Natural Resources (1985), the Convention on the

Conservation of European Wildlife and Natural Habitats (1979), and the Convention on Nature Protection

and Wild Life Preservation in the Western Hemisphere (1940). The fifth regional treaty regime discussed

here is the Regional Seas Programme, a programme initiated by UNEP in the 1970s and becoming

increasingly active today for coastal and island states, particularly in light of rapid global environmental

changes underway for these environments.

2.2.1 Africa: The African Convention

160 In 2003, Heads of State and Government of the African Union adopted a new African Convention on

the Conservation of Nature and Natural Resources which significantly revised its predecessor of the same

name (also called the Algiers Convention of 1968). The 2003 African Convention, while not yet in force,

has been ratified by eight states (15 are required). As the most modern reflection to date of international

environmental law experience, it is an important regional instrument for legal drafters and protected areas

managers in Africa to incorporate in and guide future national legislation on protected areas. Among

other things, the Convention incorporates substantive elements of the Convention on Biological Diversity

and best practice management principles for protected areas conservation as well as important globally-

recognized procedural rights related to access to information, participation, and environmental justice.

161 The new Convention retains the primary focus on conservation of nature and natural resources as well

as the general outline and structure of the 1969 Convention, remaining the principle regional

environmental law instrument for Africa and the African Union, now comprising 54 state members. The

Convention updates elements already in the 1969 Convention such as protected areas; land, soil and water

conservation and pollution control. In addition, it incorporates global commitments that have emerged in

recent decades associated with sustainable development. The new Convention gives emphasis throughout

to the need to integrate environmental protection and conservation with socio-economic development

policies and programmes.

162 Several of the new provisions are directly relevant to and, as appropriate, worth incorporating in

modern national/sub-national protected areas legislation. Among these, Article II lays out the three main

objectives: 1) to enhance environmental protection; 2) to foster the conservation and sustainable use of

natural resources; and 3) to harmonize and coordinate policies in these fields with a view to achieving

ecologically rational, economically sound, and socially acceptable development policies and programmes.

Article V, ‗Use of Terms‘, incorporates directly the definition of ‗biological diversity‘ from the

Convention on Biological Diversity: ―Biological Diversity‖ means the variability among living organisms

from all sources including, inter alia, terrestrial, marine, or other aquatic ecosystems and the ecological

complexes of which they are part; this includes diversity within species, between species and of

ecosystems.

163 Of special importance to national protected areas systems, the Convention incorporates commitments

under the Convention on Biological Diversity for in-situ conservation and recognizes IUCN‘s six

protected areas management categories. Specifically, Article XII provides that Parties ―shall establish,

maintain and extend, as appropriate conservation areas.‖ ‗Conservation area‘ is defined as any protected

area designated and managed mainly or wholly in one of six main categories of protected areas provided


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by IUCN in its Guidelines for Protected Areas Management Categories (1994); these six categories are

enumerated as part of the definition. In addition, Article XII calls upon Parties to establish other

conservation areas in order to ensure long-term biodiversity conservation. Specifically, Parties:

―shall, preferably within the framework of environmental and natural resources policies,

legislation and programmes, also assess the potential impacts and necessity of establishing

additional conservation areas and wherever possible designate such areas, in order to ensure the

long term conservation of biological diversity, in particular to:

a) conserve those ecosystems which are most representative of and peculiar to areas

under their jurisdiction, or are characterized by a high degree of biological diversity;

b) ensure the conservation of all species and particularly of those which are:

i) only represented in areas under their jurisdiction;

ii) threatened, or of special scientific or aesthetic value;

and of the habitats that are critical for the survival of such species‖ (Article XII(1)).

164 The Convention also gives explicit attention to the important role of local communities in protected

areas development and management. Article XII states that Parties ―shall promote establishment by local

communities of areas managed by them primarily for the conservation and sustainable use of natural

resources‖ (Art. XII(2)). Further, Article XVII addresses the need to protect traditional rights of local

communities and indigenous peoples. It provides that Parties ―shall take legislative and other measures to

ensure that traditional rights and intellectual property rights of local communities including farmers‘

rights are respected …; that access to indigenous knowledge and its use be subject to prior informed

consent… ; [and] take measures to enable active participation of local communities in the process of

planning and management of natural resources upon which such communities depend with a view to

creating local incentives for conservation and sustainable use of such resources.‖

165 The same article also explicitly recognizes the need for buffer zones and other measures to protect

conservation areas from harmful external activities. It provides that Parties ―shall, where necessary and if

possible, control activities outside conservation areas which are detrimental to the achievement of the

purpose for which the conservation areas were created, and establish for that purpose buffer zones around

their borders (Article XII(4).

166 A particularly important concept for sustainability of protected areas, the Convention calls for

development of associated land-use plans based on scientific information and local knowledge and long-

term integrated strategies for the conservation and sustainable management of land resources, including

soil, vegetation and related hydrological processes (Article VI).

167 Enforcing procedural rights, a topic also directly relevant for the creation and management of

protected areas, Article XVI provides that Parties ―shall adopt legislative and regulatory measures

necessary to ensure timely and appropriate a) dissemination of environmental information; b) access of

the public to environmental information; c) participation of the public in decision-making with a

potentially significant environmental impact; and d) access to justice in matters related to protection of

the environment and natural resources (Article XVI (1)).

168 Finally, it is worth noting (as characterized by IUCN in a 2004 publication on the Convention) ―a

major innovation in the Convention in the requirement that Parties take into account the work of

competent international organizations in the identification of critically important areas [provided in

Article XII(2)]‖ (IUCN ELP, 2004, p. 11). This provision opens the door for international non-


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governmental and inter-governmental organizations providing their scientific expertise toward

implementation of the Convention.

2.2.2 Asia: ASEAN Convention

169 In 1985, following negotiations that began in the 1970s, Foreign Ministers of the six Asian countries

who were then members of the South East Asian Nations (ASEAN), adopted the ASEAN Agreement on

the Conservation of Nature and Natural Resources. The original signatories were Brunei Darussalam,

Indonesia, Malaysia, Philippines, Singapore and Thailand. Today, as provided on the Association‘s web

site, the Association has expanded to 10 countries, the initial six plus Cambodia, Laos, Myanmar, and

Viet Nam (see www.aseansec.org).

170 The Agreement‘s title reflected its broad and modern scope. For the times, the resulting text was

considered the most advanced regional conservation treaty and a major achievement in the field of policy

and law. Coming on the heels of the World Conservation Strategy, it was the first treaty instrument to

incorporate an ecosystem approach and to translate objectives of the World Conservation Strategy into a

framework of duties and rights in environmental law. It included provisions requiring Contracting Parties

to take action to maintain genetic diversity in their jurisdictions and ensure sustainable use of harvested

species. It included pollution control provisions, measures for land use planning, environmental impact

assessments, and national-level scientific research and training,

171 The Agreement remains an important international law instrument in the history of modern

environmental law for its conceptual advances and its positive impact on the region. Many of its forward-

looking conservation principles have been incorporated in the region's conservation activities and, most

importantly, in the national legislation of some of the ASEAN states concerning natural resources use and

conservation.

172 Several articles are of particular relevance to these guidelines, both in concepts adopted and duties

articulated. It requires Contracting Parties, wherever possible, ―to maintain maximum genetic diversity

by taking action aimed at ensuring the survival and promoting the conservation of all species under their

jurisdiction and control‖ (Art. 3(1)). Toward this end, among other things, the Agreement provides that

Parties ―shall adopt appropriate measures to … conserve natural, terrestrial, freshwater and coastal or

marine habitats‖ (Art. 3(2)), and among these measures that the Parties shall endeavour to ―create and

maintain protected areas‖ (Art. 3(3)).

173 Article 13, directed to ‗Protected Areas‘, provides that Contracting Parties ―shall, as appropriate,

establish in areas under their jurisdiction, terrestrial, freshwater, coastal or marine protection areas for the

purpose of safeguarding:

a) the ecological and biological processes essential to the functioning of the ecosystems of

the Region;

b) representative samples of all types of ecosystem of the Region;

c) satisfactory population levels for the largest possible number of species of fauna and flora

belonging to those ecosystems;

d) areas of particular importance because of their scientific, educational, aesthetic, or

cultural interest;

and taking into account their importance in particular as:

a) the natural habitat of species of fauna and flora, particularly rare or endangered or

endemic species;


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b) zones necessary for the maintenance of exploitable stocks of economically important

species;

c) pools of genetic material and safe refuges for species, especially endangered ones;

d) sites of ecological, aesthetic or cultural interest;

e) reference sources for scientific research;

f) areas for environmental education‖ (Article 13(1)).

174 Further, Parties are to take all measures possible to preserve those areas which are of an exceptional

character and are peculiar to their country or the Region as well as those which constitute the critical

habitats of endangered or rare species, of species that are endemic to a small area and of species that

migrate between countries of Contracting Parties (Article 13(1)).

175 The Agreement defines Protected Areas in two main categories:

1) ‗national parks‘, defined as natural areas sufficiently large to allow for ecological self-

regulation of one or several ecosystems which have not been substantially altered by human

occupation or exploitation, under public control, the alteration or alienation of which is

prohibited except by the highest competent authority; and

2) ‗reserves‘, defined as areas set aside to preserve a specific ecosystem, critical habitat of

certain species of fauna or flora, a water catchment area, or for any other specific purpose

related to the conservation of natural resources or objects or areas of scientific, aesthetic,

cultural, educational, or recreational interest, which once established shall not be altered or

alienated except by the establishing authority or higher authority. (Article 3(a) and (b))

176 Again, reflecting modern principles of protected areas management, the Agreement requires a

management plan to be prepared for each protected area and, wherever appropriate, the establishment of

terrestrial or aquatic buffer zones around such areas, to include coastal land areas or watersheds of rivers

flowing into the protected area in the case of a marine site (Art. 4).

2.2.3 Europe: Bern Convention

177 The Convention on the Conservation of European Wildlife and Natural Habitats adopted in Bern,

Switzerland in 1979 (also known as the Bern Convention), came into force in 1982. It originated with the

Council of Europe which serves as the Secretariat. The Convention currently has 47 Contracting Parties

comprised of Member States of the Council of Europe, four Non-member States of the Council of Europe

(Burkina Faso, Morocco, Senegal, Tunisia), and the European Union. Member States of the Council of

Europe which are not Contracting Parties may be observers to the Convention.

178 In contrast to the broad environmental focus of the prior two regional instruments discussed above,

the Bern Convention is principally focused on conservation of wild flora and fauna and natural habitats,

especially which require cooperation of several states, with special attention to endangered and vulnerable

species and migratory species (Article 1). The Convention provides four Appendices covering strictly

protected flora and fauna species (Appendices I and II), protected fauna species (Appendix III), and

prohibited means and methods of killing, capture or other forms of exploitation (Appendix IV). A

Standing Committee, comprised of representatives of the Contracting Parties and observers, oversees the

Convention‘s implementation and takes decisions in the form of recommendations.

179 The Convention has two principal substantive chapters: Chapter 2 on ‗Protection of Habitats‘ and

Chapter 3 on ‗Protection of Species‘. For purposes of protected areas and work of legal drafters and

protected areas managers to strengthen or prepare new protected areas legislative, Chapter 2 is

particularly important. This Chapter requires each Contracting Party to ―take appropriate and necessary


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legislative and administrative measures to ensure the conservation of the habitats of the wild flora and

fauna species, especially those specified in Appendices I and II, and the conservation of endangered

natural habitats‖ (Article 4(1). Moreover, Contracting Parties are required to avoid or minimize any

deterioration of such protected areas in their broader planning and development policies by having regard

to conservation requirements of the areas, give special attention to the protection of areas that are of

importance for the migratory species specified in Appendices II and III, and co-ordinate these when

situated in frontier areas (Article 4(2-4)).

180 In an effort to advance implementation, the Standing Committee of the Convention issued

recommendations in 1989 for development of a network of ‗Areas of Special Conservation Interest

(ASCIs)‘ which came to be called the ‗Emerald Network‘. Parties were recommended to take steps to

designate [ASCIs] to ensure that the necessary and appropriate conservation measures are taken for each

area situated within their territory or under their responsibility where that area fits one or several listed

conditions (Rec. No. 16). Both Contracting States and observer states are encouraged to designate ASCIs

and to notify the Secretariat to that effect. The conditions for including an area into the ASCI focused on

those areas of great ecological value for both the threatened and endemic species listed in the appendices

and were as follows:

a) It contributes substantially to the survival of threatened species, endemic species, or any

species listed in Appendices I and II;

b) It supports significant numbers of species in an area of high species diversity or supports

important populations of one or more species;

c) It contains an important and/or representative sample of endangered habitat types;

d) It contains an outstanding example of a particular habitat type or a mosaic of different

habitat types;

e) It represents an important area for one or more migratory species;

f) It otherwise contributes substantially to the achievement of the objectives of the

Convention.

181 For the sizeable number of Member States of the Council of Europe, as well as countries accepted as

observer states, these principles provide important guidance for implementing Convention obligations in

national/sub-national protected areas legislation. European Community (now European Union) as one of

the Contracting Parties. In 1992, the European Community (now European Union), as one of the Bern

Contracting Parties, adopted the Habitats directive in order to fulfill its Bern obligations with respect to

habitat protection, and subsequently set up the Natura 2000 network (see discussion below, sec. 2.3). The

basic principles are the same between the two networks and the Emerald Network allow extension to non-

EU countries.

2.2.4 The Americas: Western Hemisphere Convention

182 The Convention of Nature Protection and Wild Life Preservation in the Western Hemisphere

(commonly known as the Western Hemisphere Convention) was concluded in 1940 and entered into force

in 1942. It is the longest standing instrument among the regional sampling included here and, as with the

Bern Convention, is primarily focused on establishment of protected areas and protection of wild flora

and fauna. Twenty-two countries have signed the Convention and 19 have ratified. It remains the main

umbrella convention in the Western Hemisphere for conservation of nature and wildlife.

183 The Western Hemisphere, particularly where international treaty commitments are understood to be

part of the domestic legal framework in judicial proceedings, the Convention provides important

supportive principles and concepts for national protected areas legislation and programmes for legal

drafters and protected areas managers to consider. With ratification, countries pledged to protect and


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preserve the natural habitats for native flora and fauna, and migratory species through each substantive

article which began with the words: ―Contracting Govenments agree‖. These pledges are still respected

today.

184 The Convention‘s primary objective, as stated in its preamble, is for Governments of the region ―to

protect and preserve in their natural habitat representatives of all species and genera of their native flora

and fauna, including migratory birds‖ (para. 1). Toward that end, Contracting Parties are requested to

―explore at once‖ the possibility of establishing protected areas in their territories (Article II). Four

categories of protected areas are defined (Article 1), all of which sustain relevance today:

a) National Park: Areas established for the protection and preservation of superlative scenery,

flora and fauna of national significance which the general public may enjoy and from which it

may benefit when placed under public control.

b) National Reserve: Regions established for conservation and utilization of natural resources

under government control, on which protection of animal and plant life will be afforded in so

far as this may be consistent with the primary purpose of such reserves.

c) Nature Monument: Regions, objects, or living species of flora and fauna of aesthetic, historic

or scientific interest to which strict protection is given. The purpose of nature monuments is

the protection of a specific object, or a species of flora or fauna, by setting aside an area, an

object, or a single species, as an inviolate nature monument, except for duly authorized

scientific investigations or government inspection.

d) Strict Wilderness Reserve: A region under public control characterized by primitive

conditions of flora, fauna, transportation and habitation wherein there is no provision for the

passage of motorized transportation and all commercial developments are excluded.

185 The Convention requires that boundaries of national parks shall not be altered or alienated in any part

except by the competent legislative authority (Article III). Moreover, it provides that in national parks

public hunting is prohibited. Strict wilderness areas are considered ‗inviolate, as far as practicable‘ with

only authorized scientific research, government inspection or other uses consistent with those purposes

purposes (Article IV). Under the Convention, Contracting Parties also agree to adopt or recommend

through their respective legislatures the adoption of laws which will assure ―protection and preservation

of natural scenery, striking geological formations, and regions and natural objects of aesthetic interest or

historic or scientific value‖ (Article V).

2.2.5 Regional Seas Programme

186 The Regional Seas Programme was launched by the United Nations Environment Programme

(UNEP) in 1974. One of the early and sustaining programmes of UNEP (created in 1973 as an outcome

of the 1972 United Nations Conference on the Human Environment in Stockholm), the Regional Seas

Programme over the past 30 years has generated both soft law environmental instruments (Action Plans

and Guidelines) and ‗hard law‘ instruments (legally-binding agreements and protocols). These regional

programmes reflect important commitments of the coastal and island states which have become Parties,

including commitments to broad-based protection of the marine and coastal environments from pollution

(both land-based and sea-based), sustainable management of natural marine and coastal resources, and

conservation of habitats and threatened species, protection of natural and cultural heritage, and integrated

planning.

187 Today, 14 regions comprising more than 140 countries have been established under the auspices of

UNEP. These are Regional Seas Programmes for the Arctic, Black Sea, Wider Caribbean, East Asia, East

Africa, South Asian Seas, ROPME Sea Area, Mediterranean, North-East Pacific, North-West Pacific, Red

Sea and Gulf of Aden, South-East Pacific, South Pacific, and Western Africa. Most of these Programmes


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began with Action Plans adopted by member governments as comprehensive strategic frameworks for

protecting the marine and coastal environment and promoting sustainable development. These Action

Plans reflect both the region‘s particular environmental challenges and its socio-economic and political

situation.

188 The next step for a Regional Seas Programme normally is for member governments of the region

involved to prepare and adopt a legally-binding convention laying out the commitment and political will

to tackle their common environmental issues as laid out in the Action Plan through joint coordinated

activities. Of the 14 Programmes noted above, 10 have developed legally-binding conventions: Black

Sea, East Africa, the Mediterranean, North-East Pacific, South Pacific, Red Sea and Gulf of Aden,

ROPME Sea Area, South-East Pacific, West Africa, and Wider Caribbean.

189 The first Regional Seas Convention to be adopted was the Convention for the Protection of the

Mediterranean Sea Against Pollution (Barcelona Convention), concluded in 1976 and entering into force

in 1978. It became a reference point for subsequent Conventions. In 1995, this Convention was updated

and renamed the Convention for the Protection of the Marine Environment and the Coastal Region of the

Mediterranean.

190 Most of the conventions have associated protocols (legally-binding agreements) on specific issues,

mainly in three areas: oil pollution, land-based pollution and protected areas. For purposes of these

Guidelines, protocols associated with protected areas and wildlife conservation should be of special

interest to legal drafters and protected areas managers of those associated countries.

191 The Eastern African Region was the first to adopt a protected areas protocol. Entitled Protocol

Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region, it was concluded in

1989 and came into force in 1996. Among other things, Parties to this Protocol pledged to establish

protected areas to safeguard important ecosystems, including particularly those ecosystems that provide

habitat for species of fauna and flora that are endangered, endemic, migratory, or economically important,

taking into account traditional activities of total populations (Articles 8 and 11). In addition, Parties agree

to cooperate in developing guidelines for selection and management of such areas, and for coordinating

the establishment of protected areas to ensure adequate protection for frontier areas and creation of a

representative network of protected areas in the region (Articles 9/10, 13,16). Parties are also to take

measures to ensure that the public is informed about protected areas and has the opportunity to participate

in protection efforts (Articles 14, 15).

192 This Protocol was followed soon after by protected areas protocols for the South-East Pacific

(concluded in 1989), Wider Caribbean (concluded in 1990), and Mediterranean (concluded in 1995). Of

these three, the South-East Pacific Protocol is not yet in force. The Barcelona Protocol came into force in

1999, one year ahead of the Wider Caribbean Protocol (which entered into force in 2000). The

Barcelona Protocol, coming shortly after the Convention on Biological Diversity, incorporates the CBD

definition for ‗biological diversity‘. Called the Protocol Concerning Specially Protected Areas and

Biological Diversity in the Mediterranean, it lays out requirements similar to those reflected in the Eastern

Africa for the conservation of specially protected areas, provides for the establishment of a list of such

areas and criteria for the inclusion of areas in that list. It requires Parties to make inventories of rare or

fragile ecosystems, of areas rich in biological diversity and of endangered or threatened fauna or flora

species, make environmental impact assessments of projects that could significantly affect protected areas

and species and, when formulating protective measures, take into account the traditional subsistence and

cultural activities of local communities.

193 The Wider Caribbean protocol, entitled Protocol Concerning Specially Protected Areas and Wildlife

to the Convention for the Protection and Development of the Marine Environment of the Wider


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Caribbean Region, contains similar elements. It is anchored in principles of sustainability, ecosystem

management, and species protection. Parties have a general obligation, among other things, ―to take

necessary measures to protect, preserve and manage in a sustainable way areas that require protection to

safeguard their special value, and threatened or endangered species of flora and fauna‖ (Article 3).

Toward that end, Parties are to establish protected areas ―with a view to sustaining the natural resources

of the Wider Caribbean Region, and encouraging ecologically sound and appropriate use, understanding

and enjoyment of these areas, in accordance with the objectives and characteristics of each…‖ (Article 4).

194 Illustrative of the modern principles these protocols incorporate, the Wider Caribbean Protocol

requires that such protected areas ―shall be established in order to conserve, maintain and restore, in

particular:

(a) representative types of coastal and marine ecosystems of adequate size to ensure their

long-term viability and to maintain biological and genetic diversity;

(b) habitats and their associated ecosystems critical to the survival and recovery of

endangered, threatened or endemic species of flora or fauna;

(c) the productivity of ecosystems and natural resources that provide economic or social

benefits and upon which the welfare of local inhabitants is dependent; and

(d) areas of special biological, ecological, educational, scientific, historic, cultural,

recreational, archaeological, aesthetic, or economic value, including in particular, areas

whose ecological and biological processes are essential to the functioning of the Wider

Caribbean ecosystems‖ (Article 4(2))

195 A unique feature of the Wider Caribbean Protocol, not yet in other protected areas protocols, reflects

its broad and comprehensive reach to sustainable development touching all aspects of land use planning,

development control and overall integrated resource management. That provision not only specifies that

the Parties are to take measures to identify and protect endangered or threatened species of flora and

fauna, using laws, regulations and other means to regulate and prohibit activities having adverse effects

on such species or their habitats or ecosystems. It goes further by providing that each Party, ―in keeping

with its legal system, shall also take appropriate actions to prevent species from becoming endangered or

threatened‖ (Articles 3 and 10(1)).

196 As shown above, the Regional Seas Programme instruments, particularly the Conventions and

Protocols, reflect commitments of countries to marine and coastal conservation through protected areas

and other means, that need national legislation for implementation. Protected areas legal frameworks in

coastal and island states where Regional Seas Programmes function need to incorporate relevant

principles, obligations, guidelines, and procedural aspects as laid out in their respective Regional Seas

instruments.

2.3 European Union -- Natura 2000

197 The European Union (EU) Member States have adopted a region-wide programme, Natura 2000, to

ensure protection of the most seriously threatened habitats and species through establishment of an

ecological network of protected areas across Europe. The Natura 2000 network was established by the

Habitats Directive adopted in 1992 and complemented by the Birds Directive adopted in 1979. These

Directives require Member States to establish Special Protection Areas (SPAs) for birds and Special

Areas of Conservation (SAC) for other species and for habitats that are of Community interest.

198 The Habitats Directive (together with the Birds Directive) forms the cornerstone of Europe‘s nature

conservation and biodiversity policy. It sets up the ‗Natura 2000‘ network and a strict system of species

protection for species of Community interest. The aim is to contribute toward ensuring biodiversity


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through the conservation of natural habitats and wild flora and fauna in the European territory of the

Member States to which the EU treaty applies (Art. 2(1)). It covers both terrestrial and marine species

and habitats and aims to take into account economic, social, cultural and regional requirements. The

network, which may contain public as well as private lands, aims to fulfill a Community obligation under

the UN Convention on Biological Diversity, and aims to contribute to the general objective of sustainable

development. More than 1,000 animals and plant species and more than 200 ‗habitat types‘ of European

importance are protected under the Natura 2000 network (e.g., special types of forests, meadows,

wetlands, etc.). As of 2007, Natura 2000 protects ___% of land in the ___ countries that form the EU.

199 While national authorities decide how to implement EU directives in domestic law, these instruments

are binding on each Member State. Obligations under the Habitats Directive are not self-executing but

require legal grounding in national systems. Member States are required to bring into force the laws,

regulations and administrative provisions necessary to comply with its provisions and they are further

required to inform the European Commission of these actions, including communicating the main

provisions of national law which they adopt in the field covered by the Directive within two years of

notification of the Directive, which was 10 June 1992 (Art. 23).

200 Therefore, it is necessary that legal drafters and protected areas managers in EU countries analyze and

incorporate within national law, most normally protected areas law, all relevant requirements of the

Directive. These include taking into account key definitions and incorporating obligations in a clear

manner.

201 Under the Directive, Member States designate special areas of conservation with a view to

maintaining or restoring, at a favorable conservation status, natural habitat types and habitats of species of

Community interest. These areas form part of the Natura 2000 network (Art. 4). The Directive includes

criteria for proposing and selecting such sites. ‗Natural habitat types of Community interest‘ mean those

areas within the territory of a Member State in danger of disappearance in their national range, with a

small natural range, or presenting outstanding examples of typical characteristics of one or more of seven

biogeopraphical regions: Alpine, Atlantic, Continental, Micronesian, Mediterranean, Boreal, Pannonian.

Further, the Directive lists such habitat types in an Annex as well as priority natural habitat types.

‗Species of Community interest‘ means species which within the territory are endangered, vulnerable,

rare, endemic and requiring particular attention by reason of the specific nature of their habitat and/or the

potential impact of their exploitation on their habitat and/or the potential impact of their exploitation on

their conservation status (Art. 1). Such species, as well as priority species, also are listed in annexes.

202 The Directive also sets out general procedures for European Commission review of Member

proposals for designating certain sites. Once a site has been accepted by the Commission, the Member

State is required to designate such sites as special areas of conservation within their national systems.

Member States must establish the necessary conservation measures including, as needed, appropriate

statutory, administrative, or contractual measures which corresponding to the ecological requirements of

the site and management plans (Art. 6). These include appropriate measures to avoid deterioration of the

site or disturbance of the species for which the site has been designated, and to clearly and precisely

define and assign surveillance (Arts. 11, 14) and monitoring obligations. More detailed obligations,

including prohibited activities, are enumerated in the Directive where the sites are established for strict

protection of certain animal species. Furthermore, Member States requires assessments of potential

impacts of proposed activities outside a selected site to ensure that those activities do not adversely affect

the integrity of the site being protected (Art. 6). Periodic reporting and monitoring are also required.

203 In exceptional cases, the Commission also may initiate proposals for protecting particular sites in a

Member State. Procedures are laid out to allow the Commission to designate such sites which have not

been proposed by a Member State but which the Community considers essential for either the


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maintenance or the survival of a priority natural habitat type or a priority species (Art. 5). During

deliberations, the Member State is obliged to take appropriate steps to avoid deterioration of the site.

204 The Directive‘s terms are complex, technical and mandatory. This was confirmed in a 2005 judgment

of the European Court of Justice in an action brought by the European Commission against the UK (Case

C-6/04). In brief, the Court found that the UK had not transposed the Directive into national legislation

with sufficient clarity and preciseness for individuals to adequately determine their rights and obligations

under the Directive. A number of specific determinations are worth highlighting here for their importance

to the legal drafter and protected areas manager where the EU treaty applies. These include the following

legal principles and judgments:

a) the adoption of conservation measures is a common responsibility of all Member States

because, as stated in the preamble of the Habitats Directive, threatened habitats and species

form part of the European Community‘s natural heritage and these threats are often

transboundary in nature;

b) because the Directive lays down complex and technical rules in the field of environmental

law, Member States are under a particular duty to ensure that their legislation intended to

transpose that Directive is clear and precise, including with regard to the fundamental

surveillance and monitoring obligations;

c) with respect to avoiding deterioration of designated sites, Member States not only have the

obligation to avoid deterioration from external human-caused impairment or disturbance but

also to take measures to prevent natural developments that may cause the conservation status

of habitats or species in SACs to deteriorate;

d) land use plans must also be subject to appropriate assessment of their implications for SACs

because they have a great influence on development decisions and in light of the importance

of applying the precautionary principle;

e) national legislation to transpose the obligations to establish a system of strict protection for

certain animal species must be precise and clear about prohibiting deterioration or destruction

of their breeding sites or resting places;

f) the scope of the Directive requires that it apply and be implemented under national law out to

the Member State‘s exclusive economic zone where such zones have been declared because

the Member State exercises exclusive sovereign powers in that zone.

2.4 International programmes and non-legally binding instruments

2.4.1 Biosphere Reserves

205 The concept of biosphere reserves was developed under UNESCO‘s Man and Biosphere (MAB)

programme which was launched in 1970. MAB‘s biosphere reserves concept was developed initially in

1974, is one of the few programmes set up by an international organization specifically for the

establishment and conservation of protected areas, and is the only programme with worldwide coverage.

The biosphere reserve concept has gained significant momentum since the mid-1990s for its emphasis on

achieving a balance between the conservation of nature and biodiversity and the socio-economic

development of places and peoples through the technique of land use zoning. In brief, as described in the

MAB website, this World Network of Biosphere Reserves provides specific opportunities to combine

scientific knowledge and governance modalities to reduce biodiversity loss, improve livelihoods, and

enhance social, economic and cultural conditions for environmental sustainability (thus contributing to

the pursuit of the Millennium Development Goals, in particular MDG 7 on environmental sustainability)

(www.unesco.org/mab/mabProg).


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206 MAB‘s work over the years has concentrated on the development of a World Network of Biosphere

Reserves (WNBR), and facilitating sharing of experience and ideas nationally, regionally and

internationally through this network. Today, there are 531 recognized biosphere reserve sites worldwide

in 105 countries.

207 Designations of biosphere reserves are made on a voluntary basis. Each site remains under the sole

sovereignty of the State where it is situated and is governed by national legislation. There is no

international treaty or other legally binding obligations governing the network, although proposed

designations by individual States must be approved by the MAB International Coordinating Council

(ICC) based on defined criteria, and unsuitable areas may be refused. The MAB Council decides upon

new biosphere reserves and also takes note of recommendations on periodic review reports of biosphere

reserves.

208 The biosphere reserve concept was substantially revised in 1995 with the adoption by the UNESCO

General Conference of the Statutory Framework for the World Network of Biosphere Reserves and the

Seville Strategy for Biosphere Reserves. Among protected areas managers and land use planners, the

concept is growing in stature and interest, mainly for its ability to bridge the gap between strictly

protected areas, on the one hand, and lived-in working landscapes and seascapes important for nature

conservation, on the other. It is likely that most countries of the world have or their protected areas

agencies are contemplating the feasibility of creating at least one biosphere reserve. Commonly,

biosphere reserves (or at least their core protected areas) are considered part of the national system of

protected areas in a country and fall within the general framework of the national protected areas

legislation. In addition, depending on the site, some biosphere reserves may have their own protected

areas legislation.

209 In this context, it is important for the legal drafter to be familiar with the international criteria for an

area to qualify for designation as a biosphere reserve, including national legal requirements. The

Statutory Framework defines ‗biosphere reserves‘ as areas of terrestrial and coastal/marine ecosystems or

a combination thereof, which are internationally recognized within the framework of UNESCO‘s MAB

programme in according with requirements laid out in that Framework (Art. 1).

210 Article 3 sets out the three main functions for a biosphere reserve to become part of the network:

1) conservation - contribute to the conservation of landscapes, ecosystems, species and genetic

variation;

2) development - foster economic and human development which is socio-culturally and

ecologically sustainable;

3) logistic support - support for demonstration projects, environmental education and training,

research and monitoring related to local, regional, national and global issues of conservation

and sustainable development.

211 Governed by these functions, biosphere reserves should strive to be sites of excellence to explore and

demonstrate approaches to conservation and sustainable development on a regional scale.

a) The Statutory Framework (Art. 4) lays out general criteria for a area to qualify as part of

the worldwide network of biosphere reserves:

b) It should encompass a mosaic of ecological systems representative of major

biogeographic regions, including a gradation of human interventions.

c) It should be of significance for biological diversity conservation.

d) It should provide an opportunity to explore and demonstrate approaches to sustainable

development on a regional scale.


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e) It should have an appropriate size to serve the three functions of biosphere reserves noted

above.

212 In terms of management, biosphere reserves must have appropriate zonation, including the following

three sub-areas or zones:

a) a legally constituted core area or areas devoted to long term protection in accordance with

the conservation objectives of the reserve and of sufficient size to meet these objectives, b) a buffer zone or zones clearly identified and surrounding or contiguous to the core area or

areas, where only activities compatible with the conservation objectives can take place,

and c) an outer transition area where sustainable resource management practices are promoted

and developed.

213 While there may be considerable variety in how countries frame their legal instruments for the

purposes of each of these different zones of a biosphere reserve, it is clear that core areas require legal

protection comparable to sites normally covered by a national protected areas legal framework as

envisioned by these guidelines – i.e., where the primary purpose is conservation. Moreover, it is clear

that certain activities inside a buffer zone will need to be limited to safeguard of the conservation

objectives of cores and this normally will involve some legal or administrative controls on land or

resource use adjacent to the core area, an element also standard in modern protected areas legislation.

Finally, in the transition zone, integration of conservation into socio-economic activities likely will entail

some special land use or resource management legal or administrative tools in order to support the overall

goals of the reserve.

214 In February 2008, the 3rd

World Congress of Biosphere Reserves further elaborated on the Statutory

Framework on additional principles and actions needed to advance biosphere reserves as the principal

internationally designated areas dedicated to sustainable development and adopted the Madrid

Declaration and Action Plan incorporating experience and further guidance with respect to implementing

the Seville Strategy and Statutory Framework. This was further elaborated in the Madrid Declaration and

Action Plan adopted by the 3rd

World Congress of Biosphere Reserves in February 2008.

215 Finally, of possible interest to legal drafters and protected areas managers working with the

legislation process, the MAB Programme is supported by regional or sub-regional networks, and the

UNESCO regional offices also play a vital role in the everyday implementation of its activities. To

initiate contact with and inquire about logistic support and experiences elsewhere in one‘s region, MAB's

web site has links to the following regional networks: Africa (AfriMAB), Arab countries (ArabMAB),

Ibero-America (Central America), East Asia (EABRN), EuroMAB (Europe, Canada, USA), IberoMAB

(South America, Spain, Portugal), Pacific Islands (PacMAB), East Atlantic (African coast and islands)

(REDBIOS), Southeast Asia (SeaBRnet), South and Central Asia (SACAM).

2.4.2 FAO and Sustainable Fisheries

216 Code of Conduct for Responsible Fisheries. While not directed specifically to protected areas, this

soft law instrument was adopted by the United Nations Food and Agriculture Organization (FAO) in 1995

to promote long-term sustainable fisheries. As such, it contains important principles that can be used by

the legal drafter and protected areas management to reinforce management and conservation measures

applied to fisheries that may be needed in marine protected areas. Moreover, they take on the force of

‗hard‘ law when incorporated into national legislation related to conservation of marine habitat and

species. The Code of Conduct is available online (at http://www.fao.org/fishery/ccrf). Among the


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important general principles for purposes of fisheries conservation and management control within marine

protected areas are the following:

a) States and users of living aquatic resources should conserve aquatic ecosystems. The

right to fish carries with it the obligation to do so in a responsible manner so as to ensure

effective conservation and management of the living aquatic resources (Art. 6.1).

b) Fisheries management should promote the maintenance of the quality, diversity and

availability of fishery resources in sufficient quantities for present and future generations

in the context of food security, poverty alleviation and sustainable development.

Management measures should not only ensure the conservation of target species but also

of species belonging to the same ecosystem or associated with or dependent upon the

target species Art. 6.2).

c) States should prevent overfishing and excess fishing capacity and should implement

management measures to ensure that fishing effort is commensurate with the productive

capacity of the fishery resources and their sustainable utilization. States should take

measures to rehabilitate populations as far as possible and when appropriate (Art. 6.3).

d) Conservation and management decisions for fisheries should be based on the best

scientific evidence available, also taking into account traditional knowledge of the

resources and their habitat, as well as relevant environmental, economic and social

factors…. In recognizing the transboundary nature of many aquatic ecosystems, States

should encourage bilateral and multilateral cooperation in research, as appropriate (Art.

6.4).

e) States and sub-regional and regional fisheries management organizations should apply a

precautionary approach widely to conservation, management and exploitation of living

aquatic resources in order to protect them and preserve the aquatic environment, taking

account of the best scientific evidence available (Art. 6.5).

217 Guidelines for MPAs as a Tool for Fisheries Management. [Note: so far as I could research, the

guidelines have not been issued yet, will include latest developments] At its 26th session, the FAO

Committee on Fisheries (COFI) recognized the role of marine protected areas (MPAs) in biodiversity

conservation and fisheries management and recommended that FAO develop technical guidelines on the

design, implementation and testing of marine protected areas as a fisheries management tool. The

intention would be for guidelines to help inform fisheries managers, decision and policy makers, and

researchers.

218 An initial outline of these guidelines was reviewed by the FAO workshop on MPAs and Fisheries

Management (Rome, 2006). According to the FAO web site, issues that will be covered by the guidelines

include the legal context and framework for MPAs used for fisheries management on an international and

regional scale. The guidelines will emphasize the ecosystem approach, integrated coastal management,

and a multi-sectoral approach within which all users are considered. The guidelines also will provide

objectives that might be applied to MPAs and MPA networks for purposes of fisheries management and

adaptive management, and more detailed considerations such as definitions of management objectives,

key factors for successful implementation and evaluation of alternative options. It is also anticipated that

core concepts will be incorporated such as stakeholder participation, evaluation, monitoring and

communication with the community. Finally, it is anticipated that the guidelines will contain a section on

future directions in MPA use within fisheries management, integration of fisheries management into

broader management frameworks, MPAs in the high seas, and roles of responsible bodies such as

Regional Fisheries Management Organizations.


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2.4.2 Instruments related to forests

219 In a situation parallel to the sustainable fisheries initiatives noted above, international initiatives in the

area of sustainable forestry also provide helpful soft law references that can be used to reinforce protected

areas policy and programmes targeting forest ecosystems, even though the primary purpose of these

international initiatives is not to promote protected areas. Again, some of the documents resulting from

these programmes have useful language which, if incorporated into national policy and protected areas

legislation, would have the force of law.

220 UNCED Forest Principles. Among the documents adopted at the 1992 United Nations Conference on

Environment and Development (UNCED) was a statement of forest principles which has remained an

important part of soft law in forest conservation. This statement, formally titled ―Non-legally Binding

Authoritative Statement of Principles For a Global Consensus on the Management, Conservation and

Sustainable Development of all Types of Forests‖, was a significant step for bringing conservation and

sustainable development into the forest sector. It contains a number of statements that for the times were

relatively foreword thinking, even though it was not legal binding because efforts for a treaty dealing with

forest conservation had not advanced. Among the fifteen principles contained in this statement, some are

particularly supportive of protected forest areas, such as the following:

a) Forest management should be integrated with management of adjacent areas so as to

maintain ecological balance and sustainable productivity, and

b) National policies and/or legislation aimed at management, conservation and sustainable

development of forests should include the protection of ecologically viable representative

or unique examples of forests, including primary/old-growth forests, cultural, spiritual,

historical, religious and other unique and valued forests of national importance.

221 UN Forum on Forests. Subsequent efforts of the UN Forum on Forests have built on and further

developed these principles. In October 2000, the Economic and Social Council of the United Nations

(ECOSOC), in its Resolution 2000/35 established the United Nations Forum on Forests (UNFF), a

subsidiary body with the main objective to promote ―… the management, conservation and sustainable

development of all types of forests and to strengthen long-term political commitment to this end…‖based

on the Rio Declaration, the Forest Principles, Chapter 11 of Agenda 21 and the outcome of the IPF/IFF

Processes and other key milestones of international forest policy.‖ The Forum has universal membership,

and is composed of all UN Member States and specialized agencies.

222 An important recent output from the Seventy Session of the Forum in 2007 was the adoption of a

non-legally binding agreement on all types of forests. The instrument is considered a milestone because

for the first time all Member States came together and agreed to make an international commitment for

sustainable forest management. The agreement is available on the Forum‘s web site at

<http://www.un.org/esa/forests/about.html>. Among its global objectives is the objective to increase

significantly the area of protected forests worldwide and other areas of sustainably managed forests (Part

IV, Objective 3). Importantly for national protected areas legislation, the bulk of the agreement is actions

Member States agree to take with respect to national policies and measures, including that they should:

1) Create, develop or expand, and maintain networks of protected forest areas, taking into

account the importance of conserving representative forests, by means of a range of

conservation mechanisms, applied within and outside protected forest areas;

2) Assess the conditions and management effectiveness of existing protected forest areas

with a view to identifying improvements needed;

http://www.un.org/esa/forests/pdf/2000_35_E.pdf


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3) Strengthen the contribution of science and research in advancing sustainable forest

management by incorporating scientific expertise into forest policies and programmes

(Part V, para. 6.p-r).

223 The agenda of the 8th Session of the UN Forum in spring 2009 continues to address the issue of

forests and biodiversity conservation, and protected areas. For countries concerned about forest

conservation, it is worthwhile for the legal drafter and protected areas manager to monitor progress of this

forum in providing further guidance, including in national law and policy, and commitments of Member

States for protected forest areas.

3. Incorporating international principles of „soft law‟

224 Formal, legally-binding treaties and agreements, including those reviewed above, are commonly

called ‗hard law‘ for the binding nature of their content once ratified by States. This section reviews key

international policy and principles (commonly called ―soft law‖) relevant for protected areas law and

administration that also are important to take into account in modern policy and law frameworks. They

are worth noting not only for their strong policy language, but also because if incorporated into national

legislation and legal agreements they do have the force of hard law.

3.1 Stockholm Principles

225 The 1972 United Nations Conference on the Human Environment (Stockholm Conference) was the

first truly global conference of nations on the environment, launching the modern field of environmental

law and motivated new activity by countries undertaking constitutional development or reform to include

environmental provisions. That Conference generated 26 Principles to inspire and guide the peoples of

the world in the preservation and enhancement of the human environment (UN Doc.A/Conf. 48/14).

These principles have been consistently reaffirmed as sustaining principles in subsequent global policy

instruments. These include principles directly on point for protected areas:

Principle 2: The natural resources of the earth, including the air, water, land, flora and

fauna and especially representative samples of natural ecosystems, must be safeguarded

for the benefit of present and future generations through careful planning or management,

as appropriate.

Principle 3: The capacity of the earth to produce vital renewable resources must be

maintained and, wherever practicable, restored or improved.

Principle 4: Man has a special responsibility to safeguard and wisely manage the heritage

of wildlife and its habitat, which are now gravely imperiled by a combination of adverse

factors. Nature conservation, including wildlife, must therefore receive importance in

planning for economic development.

3.2 World Charter for Nature

226 Since Stockholm, additional environment-related principles have entered the global mainstream. On

28 October 1982, the United Nations General Assembly adopted and solemnly proclaimed a World

Charter for Nature, which had been prepared by IUCN at the request of the President of Zaire. The

Charter proclaims core principles of conservation, including these five general principles of conservation

relevant for constitutional and policy consideration with respect to protected areas:

1) Nature shall be respected and its essential processes shall not be impaired.


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2) The genetic viability on the earth shall not be compromised; the population levels of all

life forms, wild and domesticated, must be at least sufficient for their survival, and to this

end necessary habitats shall be safeguarded.

3) All areas of the earth, both land and sea, shall be subject to these principles of

conservation; special protection shall be given to unique areas, to representative samples

of all the different types of ecosystems and to the habitats of rare or endangered species.

4) Ecosystems and organisms, as well as the land, marine and atmospheric resources that are

utilized by man, shall be managed to achieve and maintain optimum sustainable

productivity, but not in such a way as to endanger the integrity of those other ecosystems

or species with which they coexist.

5) Nature shall be secured against degradation caused by warfare or other hostile activities.

3.3 Rio Declaration and Agenda 21

227 Some twenty years after Stockholm, the United Nations Conference on Environment and

Development (UNCED), meeting in Rio de Janeiro in June 1992, reaffirmed the original Stockholm

Declaration and formally endorsed the concept of ―sustainable development‖. In the Rio Declaration of

27 Principles, nations of the world proclaimed, among other things, that in order to achieve sustainable

development, environmental protection must constitute an integral part of the development process and

not be isolated from it (Principle 4). Principle 11 provides that States shall enact effective environmental

legislation.

228 Agenda 21, another principle outcome from UNCED, is a detailed and comprehensive Action Plan

adopted by participants. This document provides further language on commitments for action with

respect to protected areas. The Agenda 21 document presents a set of integrated strategies and detailed

programmes to promote environmental sound and sustainable development, and halt and reverse the

effectives of environmental degradation. Chapter 15 is devoted to ‗Conservation of Biological Diversity‘,

and is intended to support the Convention on Biological Diversity as well as improve conservation of

biodiversity and sustainable use of biological resources generally. Among its several recommended

actions under this theme, protected areas factor significantly in its attention to in situ conservation, with

emphasis on in situ measures to include the reinforcement of terrestrial, marine and aquatic protected area

systems, promoting rehabilitation and restoration of damaged ecosystems and recovery of threatened and

endangered species, developing policies to promote conservation on private lands, establishing buffer

zones adjacent to protected areas to further protect such areas, introduce environmental impact assessment

procedures for proposed projects likely to have significant impacts on biodiversity, and promoting, where

appropriate the establishment and strengthening of regulation or management and control systems related

to biological resources at the appropriate level (para. 15.5, g-l).

229 UNCED also adopted a non-legally binding statement of principles for forests noted above.

3.4 World Summit on Sustainable Development

230 Some ten years after Rio, the 2002 United Nations World Summit on Sustainable Development

(WSSD) in Johannesburg, South Africa, reaffirmed the Rio Principles in the Johannesburg Declaration,

further proclaiming ―environmental protection‖ as one of ―three interdependent and mutually reinforcing

pillars of sustainable development‖, along with economic development and social development. (Point 5).

231 This broadened understanding of sustainable development was further developed in the context of

protected areas in the Durban Accord adopted by the Vth IUCN World Parks Congress. That Accord laid

out a global commitment for action grounded in a new ‗paradigm‘ that would give protected areas a

broader role in conservation and development, where core conservation goals would be maintained and


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enhanced, and equitably integrated with the interests of all affected people to bring synergy between

conservation, the maintenance of life support systems and sustainable development. That Congress also

endorsed the principle that protected areas should be providers of benefits beyond their boundaries on a

map, beyond the boundaries of nation states, across societies, genders and generations.

********

4. Main References (Part I)

(probably to be merged into parent list at the end)

Barber, V.C., K. Miller, and M. Boness (eds.), Securing Protected Areas in the Face of Global Change –

Issues and Strategies (IUCN, 2004).

Chape, S., S. Blyth, L. Fish, P. Fox, M. Spalding, 2003 United Nations List of Protected Areas (IUCN,

UNEP/WCMC, 2003).

Convention on Biological Diversity documents and decisions – e.g.,

Decision VII/28 – Programme of Work on Protected Areas.

―Technical Advice on the Establishment and Management of a National System of Marine and

Coastal Protected Areas,‖ (CBD Technical Paper Series No. 13) (CBD, 2004) (available on

CBD‘s web site at: www.biodiv. org).

Guidelines for Protected Areas Categories (IUCN/CNPPA, 1994)

Hillary, A., Kokkonen, M. and Max, L., (edited by), Proceedings of the World Heritage Marine

Biodiversity Workshop, Hanoi, Viet Nam (February 25-March 1, 2002), World Heritage Paper No. 4,

UNESCO, World Heritage Centre, Paris 2003.

IUCN Environmental Law Programme (ELP), An Introduction to the African Convention on the

Conservation of Nature and Natural Resources (IUCN Environmental Policy and Law Paper No. 56)

(IUCN, 2004).

IUCN Proceedings – e.g.,

Vth World Parks Congress, 8-17 September, 2003 (Durban, South Africa). ―The Durban Accord,‖

―The Durban Plan of Action,‖ and ―WPC Recommendations‖ (IUCN, 2004)

3rd World Conservation Congress (WCC) Resolution 3.048: IUCN Guidelines for protected area

management categories‖ (Bangkok, Thailand, 2004).

Kelleher, G. (ed.), Guidelines for Marine Protected Areas (IUCN, 1999).

Kothari, A., ―Collaboratively Managed Protected Areas‖, Chapter 20, pp. 528-548, in Lockwood, M. G.

Worboys, and A. Kothari (eds.), Managing Protected Areas – A Global Guide (IUCN, 2006).

Lockwood, M. G. Worboys, and A. Kothari (eds.), Managing Protected Areas – A Global Guide (IUCN,

2006)


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―World Charter for Nature‖, adopted by the United Nations General Assembly, UNGA Res. 37/7, 29

October 1982.

World Heritage Convention, ―Operational Guidelines for the Implementation of the World Heritage

Convention‖ (UNESCO, WHC 08/01, January 2008).

World Commission on Protected Areas publications –

Davey, A. G., National System Planning for Protected Areas (World Commission on

Protected Areas Best Practice Protected Areas Guidelines Series No. 1) (IUCN, 1998).

Dudley, N., and A. Phillips, Forests and Protected Areas – Guidance on the use of the IUCN

protected area management categories (Best Practice Protected Area Guidelines Series

No. 12) (IUCN, 2006)

Emerton, L., J. Bishop, and L. Thomas, Sustainable Financing of Protected Areas – A global

review of challenges and options, (World Commission on Protected Areas Best Practice

Area Guidelines Series No. 13).

Financing Protected Areas – Guidelines for Protected Areas Managers (World Commission

on Protected Areas, Best Practice Protected Area Guidelines Series No. 5) (IUCN, 2000).

Thomas, L. and J. Middleton, Guidelines for Management Planning of Protected Areas (World

Commission on Protected Areas Best Practice Area Guidelines Series No. 10) (IUCN,

2003)

Parks Magazine, (various issues) online through WCPA website at:

http://www.iucn.org/about/union/commissions/wcpa/wcpa_resources/wcpa_publications/w

cpa_parks/index.cfm.

―The WCPA—Marine Plan of Action 2006-2012,‖ (IUCN, 2006) (available online at

<http://www.iucn.org/themes/wcpa>, under programme: Marine)

Web Sites (misc):

Convention on Biological Diversity, online <www.cbd.int/>.

Convention on International Trade in Endangered Species, online <www.cites.org>.

Convention on Migratory Species, online <www.cms.int/>.

Ramsar Convention on Wetlands of International Importance, online <www.ramsar.org>.

Law of the Sea Convention, <www.un.org/Depts/los/convention_agreements/texts/unclos>.

UNESCO Biosphere Reserve Programme, online < http://www.unesco.org/mab/BRs.shtml>.

World Heritage Convention, online <www.whc.unesco.org>.

Documents

GUIDELINES FOR PROTECTED AREAS LEGISLATIONcmsdata.iucn.org/downloads/part_i_draft_pa_legislation_guidelines.pdf · IUCN – ELC PA Leg. Guidelines, working draft 2 RESTRICTED CIRCULATION