The Attribution of Legal Personality to Non-Human
Species and the Convention on Biological Diversity
Veerle Platvoet
Thesis supervisor: Prof. Lefeber Second reader: Prof. Den Heijer 28 July 2016
MSc International and European Law Track: Public International Law Faculty of Law
University of Amsterdam
Keywords: international law , environmental law , biodiversity law , Convention on Biological Diversity , legal personality
Table of Contents
Introduction 3
Chapter 1: The Problem of Biodiversity Loss 5
§ 1.1 Biodiversity loss 5
§ 1.2 The Convention on Biological Diversity 8
Chapter 2: The Shortcomings of the CBD and Possible Solutions 11
§ 2.1 The Shortcomings of the CBD 11
§ 2.2 State-to-State Action 14
§ 2.3 Economic Evaluation of Biodiversity 15
Chapter 3: The Attribution of Limited Legal Personality 20
§ 3.1 The Concept of Legal Personality 20
§ 3.2 The Attribution of Legal Personality in Municipal Law 23
§ 3.3 The Attribution in Practice 26
Conclusions 31
List of Sources 33
ABSTRACT
This paper aims to bring a contribution to the current debate on biodiversity loss. Today’s rapid biodiversity loss is a problem for ecosystems, and thus for the human race. Therefore, our legal system should be equipped to protect biodiversity. The Convention of Biological Diversity (CBD) is the instrument that has been adopted on the international plane to do so, but it has various shortcomings. Internationally, the solution is State-to-State action for wrongful acts. Domestically, this paper offers a solution in the form of the attribution of limited legal personality to non-human species. Domestic courts can be inspired by international biodiversity conventions whilst assessing domestic legislation. Animal welfare NGOs are best equipped to appear as guardian of animal species, as animals are not able to defend their own rights in court. When the attribution is a general principle as recognized by civilised nations, it will become a source of international law.
Introduction
‘The question is not, Can they reason? nor, Can they talk? but, Can they suffer?’1 2016 is an important year for the United Nations (UN) regarding their environmental policies. This year is the starting point for the implementation of the Sustainable Development Goals (SDG). These goals constitute an agenda, defined by the UN, to promote global sustainable development.2 Before the SDG, the UN had adopted the Millennium Development Goals (MDG) in 2000. The MDG were mostly focused on reducing world poverty. The SDG have a broader aim and consist of seventeen goals. These goals range from tackling climate change to providing water access to the poor. One of the SDG is Goal 15: ‘sustainably manage forests, combat desertification, halt and reverse land degradation, halt biodiversity loss’.3
This is not the first action the UN has taken to tackle the global loss of biodiversity. In 1992, the United Nations Environment Programme (UNEP) Conference on Environment and Development started to address the biodiversity problem. By then, scientists had estimated a species loss of 150 per day, and stated the destruction of habitat by human behaviour as the biggest reason for this mass extinction.4 Consequently, the CBD was adopted with the objective to conserve biodiversity.5 By 2016, 196 State Parties have ratified the CBD,6 and it has already been in force for over 22 years.7 This is not the only international agreement that tries to halt biodiversity loss. The Convention on International Trade in Endangered Species (CITES) was adopted in 1973 during a meeting of the representatives of 80 countries. CITES has been established to tackle the illegal trade in products made from endangered species and thereby aids to tackle biodiversity loss. Together with the CBD, the convention functions as a cornerstone in international efforts to halt biodiversity loss.
1 J. Bentham, The Principles of Morals and Legislation 311 note (1789). 2 < https://sustainabledevelopment.un.org/about> accessed 22 January 2016. 3 <www.un.org/sustainabledevelopment/biodiversity/> accessed 15 January 2016.
4 T. Dobson, ‘Loss of Biodiversity, An International Environmental Policy Perspective’, (1992), 17 (2),
North Carolina Journal of International Law and Commercial Regulation, 277, 279 and 287.
5 Article 1 CBD.
6 <www.cbd.int/information/parties.shtml> accessed 15 January 2016. 7 The CBD entered into force on 29 December 1993.
Yet, in 2005, scientists declared that species are still going extinct 100 times faster than they would naturally.8 In addition, 22 percent of the now known species are on the brink of extinction, according to the UN.9 These numbers are likely to increase if human behaviour with respect to the environment does not alter.
In this thesis, biodiversity loss will be further examined and the CBD will be thoroughly analysed. Furthermore, reasons for the shortcomings of the CBD will become apparent and elaborated upon. Because the CBD addresses all flora and fauna, a few delimitations have to be made. For a successful examination of the hypothesis whilst staying within the scope of this thesis, only non-human fauna, or ‘wildlife’, will be further addressed as objects of the CBD. A prolongation to include flora in the hypothesis as well, remains possible.
After discussing the shortcomings of the CBD, possible solutions for the loss of biodiversity will be elaborated upon: litigation and framing nature and biodiversity in economic terms. These appear to be insufficient as well. As a final solution this thesis will argue that the attribution of a certain legal personality to non-human species under the CBD can be effective in reducing biodiversity loss. As for the method of introducing the attribution, an amendment to the CBD is highly unlikely. In order to adopt an amendment, a consensus (or at least a two-third majority) has to be reached among the parties of the CBD.10 It is highly improbable that so many State Parties will agree on attributing legal personality to endangered species. Therefore, this new vision will have to be created bottom-up, for example through national courts that decide to attribute limited legal personality to a certain species. If a court rules as such, whilst interpreting its national laws in the light of the CBD and other international biodiversity conventions, it can create a source of international law. However, this premise is an example of the practice, whereas this thesis aims to look primarily at the possibility and benefits of the attribution of legal personality in theory.
The establishment of goal 15 of the SDG clearly indicates that the international community aims to reduce biodiversity loss. In addition to the ongoing discussions on the matter, this thesis proposes a new solution in the form of attribution of legal personality to non-human species.
8 ‘Paris Declaration on Biodiversity’, (2005) 8 (2-3), Journal of International Wildlife Law and Policy,
263, 264.
9 Facts and figures, <www.un.org/sustainabledevelopment/biodiversity/> accessed 4 July 2016. 10 Article 29 Convention on Biological Diversity (1992).
Chapter 1: The Problem of Biodiversity Loss
On the one hand, we are all fully aware of the value of animals to our life. As pets they are often regarded as members of the family or can even be a vital part of the life of a blind or disabled person. On farms they supply farmers with food and income. On a global scale, livestock provides billions of people with their daily dose of meat, eggs, milk and cheese. Furthermore, animals serve us in the testing of medicine and other scientific purposes and their presence in zoos is perceived as educational for children. On the other hand, there are thousands of animal species that are not even known to humans. The rain forests and oceans are full of creatures that we are not only unaware of, but will go extinct before we can discover their existence.11 But why should the human race be concerned about this fact, when the animals we require for our food and recreational services are abundant? The question why biodiversity loss should even be considered as alarming is an important one in order to realize that it is a problem that needs solving.
§ 1.1 Biodiversity loss
In the history of the planet there have been five mass extinctions so far.12 The exact cause was different every time, but all extinctions shared a common origin. They were all most likely caused by a rapid change in climate. If species do not have enough time to adapt to new circumstances, they die.13 It is not possible yet to conclude that the sixth mass extinction is happening right now, as not even all species that exist are known. This makes it hard to define the exact rate of extinction. However, there are clear indications that the rate of species going extinct now is a lot higher than normal.14 Of the known species, there are 12% of all birds, 23% of all mammals and 32% of all amphibians threatened with extinction.15 The fast rate is not entirely remarkable, considering the change in climate that is happening right now. Climate
11 F. Smith and others, ‘How Much Do We Know About the Current Extinction Rate’, (1993), 8 (10),
Tree, 375.
12 G. Ceballos and others, ‘Accelerated modern human–induced species
losses: Entering the sixth mass extinction’, (2015), 1 (5), Science Advances, 1.
13 ‘The Big Five Extinctions’, (2015), Cosmos Magazine [online via
https://cosmosmagazine.com/earth-sciences/big-five-extinctions]
14 Ceballos (n 12) 2.
15 Millennium Ecosystem Assessment, 2005. Ecosystems and Human Well-being: Biodiversity
change is one of the biggest threats to our ecosystem and there is no doubt that the rapid change in climate is once again causing species to go extinct because they are not able to adapt themselves fast enough.16 It is becoming general knowledge that humans have caused climate change by emitting greenhouse gases in the atmosphere.17
In addition to climate change, there are more elements causing species to go extinct. The second reason is the destruction of ecosystems.18 As humans became more abundant, they had to replace parts of nature with concrete cities. By doing so, habitats of species were destroyed, causing the species to go extinct or causing a reduction of habitat, which makes it harder to find a mate or maintain a territory big enough to survive. The construction of cities is not the only reason for the destruction of habitats. Other examples include deforestation to locate cattle for grazing, or the construction of infrastructure. Thirdly, humans are overexploiting species for all kinds of purposes. When people first encountered magnificent species like rhinoceros or elephants, they hunted them for their products. The products were sold as jewellery or medicine and became a huge business. Now people are trying to preserve species that have become a victim of poaching through international conventions like CITES, but there are not that many specimens left and some species have already become extinct through overexploitation.19 A fourth reason is the introduction of alien species, which is done consciously and unconsciously. As a result of alien species, native species can become instinct because they are not used to the competition that the new species brings.20 The last main threat to extinction is pollution. Pollution is especially dangerous to species living in the oceans, as ships carrying polluting substances such as oil can cause huge environmental disasters. It is very likely that these changes in the ocean cause many marine species to go extinct.
16 The first clear example of this phenomenon is thought to be the Bramble Cay melomys, a species
endemic to the Great Barrier Reef, Australia. See also [online via
https://www.theguardian.com/environment/2016/jun/14/first-case-emerges-of-mammal-species-wiped-out-by-human-induced-climate-change].
17 P. Dupuy and J. Viñuales, International Environmental Law, (Cambridge University Press 2015)
141.
18 N. Eldredge, ‘the Sixth Extinction’, ActionBioscience.org, 2 [online via
http://endangeredink.com/programs/population_and_sustainability/extinction/pdfs/Eldridge-6th-extinction.pdf].
19 An example is the Caspian tiger that was last seen in the 1970s and was hunted as a sport. 20 An example is the brown tree snake that got introduced in Guam in the Second World War and
caused the extinction of 12 native bird species. [online via http://www.macalester.edu/~davis/Invasive_Species.pdf]
What becomes obvious in listing these elements is the presence of human influence. Pollution can come naturally in the form of earthquakes or volcanic eruptions, but the rate at which species are going extinct at this current time can only be attributed to human behaviour.
In conclusion, biodiversity is happening at a faster rate than normal and it is being caused by human behaviour. This is problematic because it affects the vulnerability of ecosystems. The earth functions as one giant ecosystem. One of the consequences of eliminating whole ranges of species is that the ecosystem can be altered in a way that is irreversible and forces all the remaining species to adapt themselves.21 A lot of studies in this field have been done, analyzing the consequences of the introduction of alien species or the eradication of domestic species. The populations of coyotes in Southern California provide an example. They were being depleted because they were an unwanted species, and as a consequence the raccoons and feral cats’ numbers went up, which posed a threat to a high number of bird species in the area.22 Thus, by changing the ecosystem that is the earth, the human race can put themselves, and all remaining species, in danger.
There are plenty civil society groups that aim to save species that are threatened to go extinct. They usually do this because of the cultural importance of the animal or the moral feeling that it needs to be rescued. However, these actions often involve animals that are easy to pursue people to donate. Animals like the tiger, the orang-utan or the blue whale come to mind. These animals are not selected on their importance for their ecosystem, because this is something we are not always entirely aware of. There are cases of species that were thought to be unimportant, but ultimately gave scientists great discoveries in health research.23 The human race simply has to admit it does not know everything about the functioning of the ecosystem. It cannot decide which species can stay and which can go, but it has to make efforts to keep the whole system intact.
The international community had the same objective as civil society groups. In 1980, the first international concerns on preserving biological diversity were expressed by a collaboration of the World Wildlife Fund (WWF), UNEP and the International Union for Conservation of Nature (IUCN) in the World Conservation
21 S. Chapin and others, ‘Consequences of Changing Biodiversity’, (2000) 405, Nature, 234. 22 (n 15) 27. Other studies can be found here as well.
23 Research in a bacteria that lives in the Yosemite hot springs even won a Nobel Prize [online via
Strategy, in which three objectives of conservation were established.24 Thereafter, the UNEP set up a working programme to start negotiations on an international treaty for conservation, which was open for signatory at the Rio Summit in 1992.25
§ 1.2 The Convention on Biological Diversity
The CBD entered into force in December 1993. There are 196 Parties to the CBD. Notably, the United States (US) has signed the CBD, but has not ratified it. Its absence can be explained for a big part by the provisions that the CBD contains on genetic resources. According to one of the Republican senators in Senate during this period, President Bush did not ratify the CBD because the equitable sharing of benefits arising out of utilization of genetic resources, one of the main objectives of the CBD, would have a negative impact on the US economics.26
The CBD differs from earlier conservation agreements, which are all concerned with the rational use of common property, shared resources or the conservation of ecosystems. The CBD is the first international convention that establishes a global regime to protect the biological diversity.27 Biological diversity is defined, according to the CBD, as the variability among living organisms, thus including variety within species, between species and of ecosystems.28 Variety within species is necessary for a sufficient genetic diversity to ensure a stronger survival of the species through adaptation and evolution. The variety between species is the actual biodiversity that reduces when species become extinct. The variety of ecosystems is necessary to keep a wide range of species and to maintain the entire ecosystem of the planet.
The conservation of biological diversity and the sustainable use of its components is one of the two main objectives of the CBD.29 The other is the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources.
24 M. Bowman, International Law and the Conservation of Biological Diversity (M. Bowman and C.
Redgwell eds Kluwer Law International 1996) 8.
25 Ibid 9.
26 R. Blomquist, ‘Ratification Resisted: Understanding America's Response to the Convention on
Biological Diversity, 1989-2002’, (2010) 32 (4), Golden Gate University Law Review, 526
27 A. Boyle, International Law and the Conservation of Biological Diversity (M. Bowman and C.
Redgwell eds Kluwer Law International 1996) 33.
28 Article 2 Convention on Biological Diversity (1992). 29 Article 1 Convention on Biological Diversity (1992).
Only five articles in the Convention support the latter objective, but two supplemental protocols have been adopted to implement them. The Cartagena Protocol is ratified by 170 States and entered into force in September 2003. Its objective is to regulate the movement of living modified organisms from one State to another.30 The Nagoya Protocol is ratified by the relatively small number of 70 States and entered into force in October 2014. Its objective is to regulate the fair and equitable sharing of the benefits arising from the utilization of genetic resources.31
The CBD has a number of treaty bodies. All State Parties are united in the Conference of the Parties (COP), which meets every two years to review the progress.32 The Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) is established to support the COP.33 The SBSTTA is concerned with the assessment of biological diversity, and reports periodically to the COP. In addition, several working groups can be established to deal with a specific issue for a limited amount of time. Currently there are four working groups active; these are the Working Group on Article 8(j), the Working Group on Protected Areas, the Working Group on Access and Benefit Sharing and the Working Group on Review and Implementation. Another Ad Hoc body that is only concerned with the Nagoya Protocol is the Intergovernmental Committee for the Nagoya Protocol.
The content of the CBD addresses states, while first and foremost recognizing the principle of sovereignty.34 The scope of the CBD is mostly the biological diversity (in areas within the limits of its national jurisdiction).35 Articles five to fourteen contain obligations for the State Parties. These vary from the obligation to cooperate with other State Parties to the obligation to establish protected areas.36 However, the language of these articles is not very strong, as will be further discussed in chapter two.
In October 2010, the COP of the CBD adopted the Strategic Plan for
Biodiversity 2011-2020, containing the Aichi Biodiversity Targets.37 The purpose of the Plan is to, inter alia, provide a framework for State Parties to develop their own
30 Article 1 Cartagena Protocol. 31 Article 1 Nagoya Protocol.
32 Article 23 Convention on Biological Diversity (1992). 33 Article 25 Convention on Biological Diversity (1992).
34 Preamble of the Convention on Biological Diversity (1992) and repeated in article 3. 35 Article 4 Convention on Biological Diversity (1992).
36 Articles 5 and 8 Convention on Biological Diversity (1992).
targets.38 The need for the Plan came from the failure of meeting the previous 2010
Biodiversity Target.39 The 2010 Targets were established at COP6 in 2002 and required a significant reduction of the rate of biodiversity loss.40 The more recently developed Aichi Targets consist of 20 different targets that have to be achieved by 2020 at the latest. Most targets refer to the conservation of a specific area that is suffering biodiversity loss, others relate to conservation management or are more socially focussed, such as the target to make people aware of the values of biodiversity.41
In summary, there currently is a rate of biodiversity loss that is relatively fast, and could very well be the sixth mass extinction in the history of the earth. This high rate can almost entirely be ascribed to human activities. The causes include climate change, population growth and its consequences, overexploitation, introduction of alien species, and pollution. As different species perform different functions in ecosystems all over the world, biodiversity is important for the functioning of the entire ecosystem that is the earth. Humans do not have enough knowledge of these ecosystems to know which species are important for its existence and therefore cannot make the decision which species should be preserved and which species should not.
As biodiversity became a concern of mankind, the CBD was adopted at the Rio Earth Summit in 1992. It has become a global treaty since its entry into force in December 1993, with 196 State Parties at the time of writing. The CBD aims to conserve biodiversity and the sustainable use of its components. Concerning biodiversity, it has adopted the 2010 Targets in 2002 to reduce the biodiversity loss. These targets were not met and newly developed Aichi Targets were adopted in 2010. The CBD includes a total of ten articles that concern the conservation of biodiversity with obligations for the State Parties.
38 Ibid under 3 (b).
39 Dupuy and Viñuales (n 17) 189.
40 UNEP (2004). Decisions adopted by the conference of the parties to the convention on biological
diversity at its sixth meeting. Report on the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/6/20/Part 2) Strategic Plan Decision VI/26" (CBD, 2002), The Hague, 2002 April 7-19. Available: www.biodiv.org/doc/meetings/cop/cop- 06/official/cop-06-20-part2-en.pdf.
Chapter 2: The Shortcomings of the CBD and Possible Solutions
As previously discussed, human behaviour is still causing biodiversity loss at a very high rate, even though the CBD has been in force since 1993. The assumption that the CBD is not functioning the way it is supposed to be is easy to make. Its inefficiency has various reasons, and a few of these will be discussed.
The solution that this thesis offers for the shortcomings of the CBD is the attribution of legal personality to species. However, several other options that can be used to protect biodiversity must be addressed as well. Therefore, this chapter will consider the use of the International Court of Justice (ICJ) by States against other States for their behaviour. Furthermore, this chapter will introduce the principles that are embodied in the Aarhus Convention about access to justice for civil society groups. Another option, that does not take the legal route, is the economic evaluation of biodiversity. This option is, amongst others, being studied by bodies of the CBD. These options will be discussed in the second and third paragraph of this chapter.
§ 2.1 The Shortcomings of the CBD
The CBD has not, as yet, achieved its objectives. Elements contributing to the failure of the CBD are the time frame of its conclusion, the question whether or not it is legally binding, and the North-South division it establishes. For a full analysis, this chapter will also discuss the 2010 Biodiversity Targets. Since the 2010 Targets and the Aichi Targets are similar, such a discussion will lead to predictions on the realization of the upcoming Targets.
First, the time frame in which the CBD was constructed was too short. The negotiations on the CBD were brought within the mandate of the UN Conference on Environment and Development.42 Because of this mandate, the convention had to be ready for signature at the UN Conference on Environment and Development in June 1992.43 Considering that UNEP only started drafting the convention in 1989, three years is a very limited time for drafting a convention with a topic this significant.
42 UN General Assembly Resolution 44/228. 43 Boyle (n 27) 35.
Maybe due to the time pressure, three important articles did not make it to the final text. These were the precautionary principle, responsibility for damage to biodiversity and a list of protected global areas and species, which was designed to require extra protection, comparable to the annexes in CITES.44
Second, the language of the CBD is often not strong enough. There is no doubt that the CBD defines as a treaty.45 This is supported by the fact that it contains articles on ratification and its entry into force.46 However, this does not mean that it imposes direct enforceable obligations on all State Parties. The language of the agreement is very important here. From article five to fourteen, the majority contains the phrase ‘as far as possible and as appropriate’. This wording imposes hardly any legal obligation on the State Parties. The articles are still legally binding as they form part of an international agreement, but the obligations that only have to be met ‘as far as possible and as appropriate’, are not enforceable. This means that, even if the CBD establishes a tribunal, no sanctions can be applied when a State Party is not complying with the articles. The other articles in the section five to fourteen use the word ‘shall’, which imposes a legal obligation. However, these are only three articles, and two of them contain the phrases ‘in accordance with its particular conditions and capabilities’ respectively ‘taking into account the special needs of developing countries’.47 The remaining article consists of two paragraphs, one concerning public education and the other public awareness. However, this last paragraph contains the phrase ‘as appropriate’.48 These enforcement shortcomings also apply to the implementation. With vague language it is more difficult for State Parties to implement the provisions correctly.49 One of the reasons for the soft language could be the fact that the CBD is designed as a Framework Convention, where the objective can be defined in protocols later on in the process.50 However, supplemental protocols concerning biodiversity protection have not been adopted to date.
44 Boyle (n 27) 37.
45 ‘International Agreement’, Article 2 (a) Vienna Convention on the Law of the Treaties.
46 D. Bodansky, ‘Legally Binding versus Non-Legally Binding Instruments’ (2015), Arizona State
University Sandra Day O'Connor College of Law, 157.
47 Articles 6 and 12, Convention on Biological Diversity (1992). 48 Article 13 (b), Convention on Biological Diversity (1992).
49 V. Munoz Tellez, ‘The Campaign Against “Biopiracy”: Introducing a Disclosure of Origin
Requirement’, 2.
50 S. Harrop and D. Pritchard, ‘A Hard Instrument goes Soft: The Implications of the Convention on
Third, the division of North and South in the CBD. Most terrestrial species are located in the rain forests or savannahs of developing countries, which, in their turn, rely on their biodiversity for benefits. For example, biodiversity in protected areas in Namibia contributes 6 % of Gross Domestic Product (GDP) through tourism, with a significant potential for future growth.51 This noteworthy difference between the North and the South led to difficulties in the negotiations. Developing countries wanted the sustainable use of biological resources to be the main goal of the CBD, whilst developed countries aimed at conservation being the main objective.52 Since there was a lot of time pressure, compromises had to be made and the final text includes, but does not define conservation. The fact that there is a difference of intention between the North and the South is not new in international environmental law, and it is also not the only time it has caused trouble in compliance with an agreement.53
In order to predict whether the Aichi Targets will be effective, an analysis of the 2010 Biodiversity Targets might be useful. As previously discussed, the Aichi Targets were developed because the State Parties did not meet the 2010 Biodiversity Targets. The 2010 Targets were never discussed in the original text of the CBD, but decided during a COP.54 The 2010 Target was to reduce biodiversity loss by 2010. There were no further specifications on how to reduce the biodiversity loss and the Targets lacked ambition overall.55 Since they were adopted in the form of targets and not as a protocol, they were not binding on the State Parties. The 2010 Targets were not achieved by 2010 and this was recognized by the COP of the CBD.56
Most of this argumentation can be applied to the Aichi Targets. They are not binding on State Parties, and are formulated in a way that makes implementation difficult. However, there is some progress compared to the 2010 Targets. Some of the Targets are more ambitious, for example the target to conserve 17 per cent of terrestrial water and 10 per cent of the marine areas, compared to 10 per cent of the
51 Biodiversity, Development and Poverty Alleviation: Recognizing the Role of Biodiversity for
Human Well-being’ (2009) Secretariat of the Convention on Biological Diversity 7.
52 Harrop and Pritchard (n 50) 475.
53 Another example in environmental law is the UN Framework Convention on Climate Change
(adopted at the same time as the CBD) and its Kyoto Protocol.
54 CBD–COP6, 2002, Decision VI/26. 55 Harrop and Pritchard (n 50) 477. 56 Ibid.
world’s ecological regions.57 However, more ambitious targets do not necessarily create an incentive for State Parties to make an effort.
§ 2.2 State-to-State Action
If an international agreement is violated by a State, another State has the competence to bring said State to court for committing an internationally wrongful act.58 Concerning the protection of biodiversity, this has been done recently by Australia in the Whaling in the Antarctic case.
In summary, Australia brought Japan before the ICJ for violating the International Convention for the Regulation of Whaling. Japan had a reservation under the convention that it was still allowed to practice whaling, but only for scientific purposes. The ICJ found that their programme, JARPA II, did not suffice as scientific and was therefore violating the convention.59 This is an example of protection of biodiversity (in this case, the genetic diversity of cetaceans) of one State by bringing another State before the ICJ. Only States are parties to the Statute of the ICJ and have the competence to bring other States before the court.60 This reveals the biggest weakness in this solution towards biodiversity protection. States do not always have an incentive to call other States on their behaviour towards biodiversity, especially when the wrongful act is within the other States’ territory.
The Aarhus Convention might offer a solution to this problem. It is adopted under the auspices of the UN Economic Commission for Europe. Therefore, even though it is only ratified by European States, which makes it a regional agreement, it has international roots and aspirations to become an international agreement.61 The Aarhus Convention has three pillars: access to environmental information, public participation in environmental decision-making and access to justice.62 These pillars are similar to the objectives of Principle 10 of the Rio Declaration and the Aarhus
57 Target 11 of the Aichi Targets and Target 1.1 of the 2010 Targets.
58 International agreements consist of obligations for the state, and breach of these obligations amounts
to an internationally wrongful act under article 2, paragraph b of the ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001). Besides the ILC articles, international agreements often contain provisions considering disputes.
59 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Summary of the Judgment
of 31 March 2014, 12.
60 Article 34 paragraph 1, Statute of the International Court of Justice (1945).
61 E. Morgera, ‘An Update on the Aarhus Convention and its Continued Global Relevance’ (2005), 14
(2), Reciel, 138.
Convention can be seen as a legally binding elaboration on the principle.63 The Aarhus Convention provides additional protection of biodiversity 64 because environmental NGOs are the ‘public concerned’, which means they have the competence to have access to justice.65 They have access to justice whenever the access to environmental information is denied to them or not given correctly.66 Although the Aarhus Convention is only ratified by European States, there are similar elaborations on Principle 10 in progress in other regions, such as Africa and Latin America.67 Thus NGOs already have a standing with regard to environmental information. However, since the Aarhus Convention is a regional agreement, it only applies in Europe. In addition, its application is only between an NGO and public authorities. This means that private companies have no obligation to make their environmental information public. Even though the Aarhus Convention has no direct global application, the principles it establishes can benefit the attribution of legal personality, and will be further discussed in chapter 3.
§ 2.3 Economic Evaluation of Biodiversity
Economic evaluation of an object creates an incentive to invest in it, so a profit can be made. Therefore, application of economic evaluation to biodiversity could be used to reduce the loss of biodiversity. If a species, or a biodiversity-rich area, is a financial product and can be sold as a share the area or species are automatically protected. It becomes a wise investment to halt habitat destruction or to make sure no alien species invade the area. Of course, this brings to mind one important question: what is the value of nature? This question has been the cause for much debate over the years. The type of value that will be attributed to biodiversity is use or non-use value. Non-use value because the assets will never be used and just be forwarded to next generations.68 Its non-use value consists of a primary, intrinsic value that simply
63 Morgera (n 61) 12.
64 ‘Biological Diversity’ is specifically mentioned in 2 paragraph 3 sub a in the Aarhus Convention. 65 Article 2 paragraph 5 and article 9 paragraph 2, Aarhus Convention.
66 Article 9 and article 4, Aarhus Convention.
67 ‘UNEP – Principle 10 and the Bali Guideline’, <
http://www.unep.org/civil-society/Partnerships/Principle10/tabid/105013/Default.aspx> accessed 14 July 2016.
68 L. Jones-Walters and I. Mulder, ‘Valuing nature: The Economics of Biodiversity, (2009) 17, Journal
cannot be put in economic terms.69 Examples of use value are hunting, observation or watching a show about a species.70 The fact that biodiversity as such is not valued, is considered market failure.71 Two possible methods to assign value to biodiversity are the Contingent Valuation Method (CVM), which translates into a survey to find out what value people would give to nature. The other method consists of identifying the perfect value by looking at consumer behaviour.72
A very recent and major study done in this area is The Economics of
Ecosystems and Biodiversity (TEEB) study. By highlighting the gains of biodiversity
and the costs of biodiversity loss, TEEB aims to show the importance of economics as an instrument in the biodiversity policy.73 It was introduced at the CBD COP9 and received much attention.74 The study aims to connect ecosystem services such as carbon sequestration or water services with biodiversity conservation, making conservation valuable.75 For example, medicine that can be derived from a certain plant can be valued in terms of the profit the medicine will bring. The plant needs to be conserved to keep producing the medicine. The plant is located in a certain habitat, which is probably occupied by multiple species. When conserving the habitat of the plant, other species are also conserved at the price of the medicine’s profit. Besides that, TEEB aims to treat biodiversity as an ecosystem service as well. In its valuation database, biodiversity acts either as a supporting service or an ecosystem service of its own.76 The valuation of biodiversity takes a lot of time and the TEEB project is still ongoing, whilst being monitored by the CBD.77
While TEEB focuses on the international plane, new markets are being created on national levels as well. Wildlands Inc. is a company based in the US, which establishes mitigation banks and conservation banks.78 It provides permits to destroy a piece of land that is owned by the buyer of the permit. The buyer is then allowed to
69 P. Nuñes and J. Van Den Bergh, ‘Economic valuation of biodiversity: sense or nonsense?’, (2001)
39, Ecological Economics, 205.
70 M. Kotchen and S. Reiling, ‘Estimating and Questioning Economic Values for Endangered Species:
an Application and Discussion’, (1998) 15 (5), Endangered Species Update 78.
71 P. Sukhdev and others, Challenges in Framing the Economics of Ecosystems and
Biodiversity: the TEEB initiative, (2010) 2, Current Opinion in Environmental Sustainability 18.
72 Ibid. 73 Ibid 15.
74 UNEP/CBD/COP/9/29, p. 15, 233. 75 Sukhdev (n 71) 16.
76 A. McVittie and S. Hussain, ‘The Economics of Ecosystems and Biodiversity - Valuation Database
Manual’, (2013), 2.
77 UNEP/CBD/COP/12/29, p. 44.
78 Wildlands: the Leader in Mitigation Banking, [online via
destroy the protected species that are living on that piece of land. In exchange, the company protects another piece of land on which other protected species live. In this method, offsetting is used to allow landowners to destroy private land where endangered species live. This method is called a ‘Habitat Conservation Plan’ by the US governmental agency on Fish and Wildlife Service and is being highly promoted as a way of conservation.79
However, by using offsetting to value biodiversity and conserve it, biodiversity will ultimately not be reduced or treated in the best way possible. First of all, by protecting a certain piece of habitat in exchange for another piece being destructed, like Wildlands Inc. practices, there is still a net loss of habitat.80 There is definitely one piece of habitat that is being destructed, while it was never certain that the other piece was to be destructed in the future. In addition, humans are not always aware of the value (not just monetary, but also scientific or aesthetic) of a species, as discussed in chapter one. By protecting the habitat of a species that humans consider as valuable for one reason or another and destructing the habitat of a species that is considered less important, humans take a risk that can have severe consequences.
The same applies to studies on an international level, such as TEEB. It is nearly impossible to contribute monetary value to a species of which the long-term value is not known. It seems as if TEEB recognizes this as well. As previously discussed, they treat biodiversity as either ‘supporting services’, or ecosystem services. These supporting services are not worth much. On coastal wetlands for example, the proportion of their value is only around 5%.81 The reason for this could be the impossibility of attributing a complete value to a species because of the abovementioned non-use value. TEEB focuses only on ecosystem services, translating nature into the value of the services it has to offer. By doing so, TEEB detaches the value species have because of the simple fact they are, and connects all value of biodiversity with human welfare. However, there are plenty of species that have no known value to humans, or are not part of an ecosystem that we recognize, but still need to be preserved. This makes the previously discussed methods such as CVM, for assigning value by conducting surveys or observing consumer behaviour, invalid. For
79 U.S. Fish & Wildlife Service, Habitat Conservation Plans under the Endangered Species Act,
Factsheet [online via www.fws.gov/endangered/esa-library/pdf/hcp.pdf].
80 S. Bekessy and others, ‘The Biodiversity Bank cannot be a Leading Bank’ (2010) 3, Conservation
Letters, 152.
use value such a method could be applied, but this would not cover all value and certainly not all species, as not all species lend themselves for such uses. Furthermore, a certain number of individuals from a species is necessary to maintain a high genetic diversity, thus just preserving a small piece of habitat for a group of individuals to live does not suffice.
In addition to the abovementioned counterarguments to assign monetary value to biodiversity, more reasons are present to believe that this would not reduce biodiversity loss. As discussed in chapter one, there are various reasons for this biodiversity loss, such as invasive alien species, climate change, or human population growth. Even if some species will be valuated, this will not stop climate change or human population growth from happening. The species can become more valuable, but simply their price will not be an incentive to reduce the causes of climate change or stop building cities. Furthermore, certain risks that apply to economics in general could emerge. Hypothetically, a collapse of biodiversity prices following a crash in the stock market is possible, similar to the Great Recession of 2008 in the US. This would make all species worthless economically.
In summary, the CBD has not been efficient in conserving biodiversity for numerous reasons. It had to be developed in a very short time frame in relation to its importance. In addition, the language of the agreement is not strong enough, which results in provisions that are legally unenforceable. Moreover, biodiversity strongly divides the industrialized North and biodiversity-rich South, and this was reflected in the negotiations. An analysis of the 2010 Biodiversity Targets, adopted in 2002, can provide predictions about the current Aichi Targets. The 2010 Targets were not met, due to the fact that they were not binding, unambitious and lacked specifications. To some extent, this applies to the Aichi Targets. Even though they are more ambitious, they are not binding and fail to provide an incentive to State Parties on conservation.
There are several possible solutions to these shortcomings that need to be addressed. States can bring other States to the ICJ for their treatment of (genetic) biodiversity, as has happened in the Whaling in the Antarctic case. However, States do not always have the incentive to file such a complaint against other States. The Aarhus Convention is a regional agreement that offers NGOs access to justice in cases where environmental information has been denied to them. Even though it has various
flaws that make it inapt for the global tackle of biodiversity loss, it can serve as inspiration for the development of other rules.
Valuating biodiversity could be the solution for States to conserve their own biodiversity. If species can be assigned a certain net worth, their conservation becomes profitable. A lot of studies have been done in this field, the most important one being TEEB. Examples can also be found on the national level, in the form of
offsetting. However, economizing biodiversity will not be effective enough, since
species cannot be assigned a value for their non-use, i.e. their intrinsic value. Even if species have a certain value, these are not likely to stop the causes of biodiversity loss from happening. Above all, economic activities bring certain risks with it, which will bring irreversible destructive consequences in the case of biodiversity.
Chapter 3: The Attribution of Limited Legal Personality
It is obvious that, by continuing business as usual, problems for our global ecosystem on the long term will arise. Nowadays people are more concerned with the environment than roughly 50 years ago, but the number of people who are willing to sacrifice the lifestyle they have grown accustomed to, is not high enough. Politicians are generally concerned with getting re-elected, and are thus not willing to adopt policies that will not make them popular amongst voters and only have long-term benefits. Therefore, the rule of law is the most hopeful approach to tackle biodiversity loss. From this perspective change will come bottom-up, but politicians will have to change their policies in order to obey the law. If national courts attribute legal personality to species, this will ultimately become a general principle of law
recognized by civilised nations, and therefore a source of international law.82 This chapter discusses an additional solution to the biggest environmental problem of this world: attributing - limited - legal personality to non-human species in international law.
§ 3.1 The Concept of Legal Personality
As legal personality differs depending on the perspective that is taken, it is best to explain it in both municipal law and international law. Therefore this paragraph is discusses them separately.
Legal personality gives an entity rights and duties which can be enforced before a court. A legal person does not necessarily have to be a natural person: companies have long been recognized in law as having legal personality.83 The type of personality determines the set of rights and duties. In most municipal legal systems, a child is a legal person, but needs to reach a certain age before it obtains the right to vote. Legal personality is, as most concepts in law, not fixed. In 1772, the highest court of Great Britain decided that a man who has been a slave in England, could not be removed from England against his will, thus giving him rights and therefore legal
82 Article 38 paragraph 1 sub c, Statute of the International Court of Justice (1945). 83 M. Shaw, International Law, (Cambridge University Press 7th edition 2014) 142.
personality.84 In the US, companies required a legal personality in 1818.85 The scope and character of the legal personality depends on the law. For example, women in the Netherlands already had legal personality when this was extended with the right to vote in 1917.86 Different domestic legal systems attribute legal personality to different entities, but there is a pattern visible in which legal personality can be altered and extended to fit the basic principles of society. When the standards of society change, so does the concept of legal personality. Non-human species do not have a legal personality now, but if biodiversity is required to keep the ecosystem intact, the attribution of a legal personality could proof a useful approach.
Legal personality in international law is more difficult. The exact meaning and requirements of ‘legal personality’ are much debated. Its need is obvious in law: there must be an entity that can be identified to possess rights or duties.87 The ICJ provided an answer in the Reparations for Injuries case, stating that international personality means that an entity is a subject of international law and capable to bring international claims to maintain these rights.88 However, this does not necessarily mean that subjects of international law can bring international claims. Only States can be parties to the ICJ, but international law does recognize fundamental rights of the individual.89 A possible explanation would be the stream of thought that States and international organizations are the primary subjects of international law, with the capacity to recognize other legal persons as subjects of international law.90 Peoples such as minorities would then qualify as secondary subjects of international law, as they have the right to self-determination.91
In conclusion, States and international organizations definitely enjoy international legal personality in the full sense. They have rights and duties and can enforce these in court. Individuals, minorities, indigenous peoples or NGOs are often
84 English Court of King’s Bench, Somerset v. Stewart, 98 ER 499 (1772).
85 United States Supreme Court, Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819). 86 In 1917 the Dutch constitution was changed, giving women the right to vote.
87 J. Klabbers, ‘The Concept of Legal Personality’, (2005) 11, Ius Gentium, 39.
88 Advisory Opinion International Court of Justice, Reparations for Injuries Suffered in the Service of
the United Nations, Reports 1949, p. 179.
89 H. Lauterpacht, ‘The Subjects of the Law of Nations’, (1947) 63, Law Quarterly Review, 438. 90 B. Vukas, ‘States, Peoples and Minorities as Subjects of International Law’, (1991) 231, Recueil des
Cours, 485, 486.
91 As legal personality in international law is still a very much debated subject, it has never been
decided that minorities are secondary subject. However, as decisions are still to make, it suffices to discuss the viewpoints of authors on this subject.
thought of to have a legal personality, but are unable to enforce their rights in an international court.
In current times, non-human species do not have any legal personality. They are recognized in international law as a species and the CBD has been adopted to keep the human species from interfering with the non-human species. However, they remain objects of the majority of the provisions in the CBD, not subjects. The thought of establishing legal personality of non-human species and therefore the capacity to maintain rights and enforce these in court is considered as absurd. In history, the same reaction can be found many times when certain groups were merely considered as objects and therefore without any rights.
As previously discussed, it is obvious now that children have the right to life, to education and other rights, but need to acquire a certain age of adulthood before obtaining the right to vote. In ancient Roman times, children were considered as
things, belonging to the father of the house, and it was his choice to sell them, kill
them, or marry them off.92 Much more recently, in the 19th century, coloured people did not have the right of citizenship because they were inferior.93 That a group of beings is not entitled to any rights because they are of a different age, colour, gender, nationality, mental health, or religion than the Caucasian males that were considered as the replica of the image of God in Western societies was normal until very recently. The same goes for species. Because non-human species are not human they are not entitled to the right of life or any other basic rights.
Claiming that such species should have the capacity to enforce these rights in court is not a demand for unrealistic events. It remains obvious that no other species than the human species that have developed the modern democratic society should have the right to vote in elections. It simply means that other species than the human species have the right to survive on earth. Considering the failure of the CBD and its Targets to achieve its objectives, the possibility of enforcing the provisions in court would very well be the right solution. There are many arguments that can be made as to why law is necessary. Law helps construct a society because order is necessary for a stable existence. It is believed that without law, society would become anarchy, a
92 C. Stone, Should Trees have Standing – Toward Legal Rights for Natural Objects (Oxford
University Press, 3rd edition 2010) 4.
so-called state of war in which it is every man against every man, as philosopher Thomas Hobbes was convinced of. Ergo, law is part of everyday life to protect humans against themselves and each other. It is known that biodiversity is required in our ecosystem for multiple reasons, one of which is that we do not know its value and biodiversity loss can damage the ecosystem and therefore human life irreversibly. Giving an endangered species the right in court to enforce the provisions from the CBD obliging a State Party to, for example, establish a system of protected areas to conserve those species, will sustain biodiversity in the most effective way possible. This does not call for the unrealistic event of a species standing in court. It means that attorneys can stand in court on behalf of a species, as has been done many times for mentally disabled people, children, or others who are not capable of defending their own in court.
As previously discussed, this change would have to come bottom-up. One approach would be the recognition of legal personality of non-human species in municipal legal systems. This would ultimately become a general principle of law recognized by civilised nations, and therefore a legitimate source of international law.94
§ 3.2 The Attribution of Legal Personality in Municipal Law
The medieval times often brought groups of animals to trial in ecclesiastical courts, such as swarms of insects that were causing a nuisance.95 In 1522 in France, rats were brought to trial for committing a crime. They got an attorney assigned to them who pleaded them free. Throughout the medieval times, animals were often brought to trial for committing crimes. Not all were lucky like the rats: when proven guilty, they were often murdered directly. Some, like an Austrian dog, received time in prison as punishment.96 This treatment of animals was not because people thought of them as legal actors: they simply ascribed some form of moral sense to them, as they also did to gods and other superstitious creatures. This moral sense did not give them any
94 The general principle of law recognized by civilised nations is one of the sources from article 38
paragraph 1 Statute of the International Court of Justice (1945). See also Shaw (n 81) 50.
95 J. Girgen, ‘ The Historical and Contemporary Prosecution and Punishment of Animals’ (2003) 9,
Animal Law, 99.
96 G. Teubner, ‘Rights of Non-humans? Electronic Agents and Animals as New Actors in Politics and
rights, only duties and often punishment. During the Enlightenment and the scientific revolution, people stopped believing in the moral sense of animals. Philosophers and scientists concluded that animals were just things.97
The last few decades a new movement is developing. The first animal law course at a law school was taught in 1977. Now there are over 140 law schools in the US offering such a course, including Harvard.98 This movement is not just restricted to the US: there is an entire master devoted to animal law in Barcelona, Spain and animal law is being taught all over the world. People are starting to get more conscious of the nature again, and scientific evidence shows that some animals can be ascribed some kind of moral sense or consciousness after all.99 An indication of the growth of the movement that believes in the moral duty to protect animals and the environment can be found in the many civil society groups that are active now. In the case of non-human species, there are over 17,000 animal protection societies.100 These are society groups that are concerned with both animal welfare and animal rights. Animal welfare is, however very important, not the object of this paper. Society groups that are merely concerned with animal rights are less abundant than those concerned with their welfare. These animal right groups often litigate or advocate for better laws for individual animals that are subject to cruelty in circuses, in zoos or by individual owners. They do not advocate the attribution of legal personality to animals.
The Nonhuman Rights Project (NhRP) is an example of an NGO that is concerned with advocating for rights for individual animals, with the aim to change their legal status from a thing to a person.101 The NhRP is based in the US, where animals are considered property.102 They file cases in courts all over the US on behalf of captive chimpanzees using a habeas corpus writ. This writ has been in use for many years in England to free people from public or private prisons, and it was also the writ used to fight human slavery in the previously mentioned Somerset v. Stewart
97 René Descartes, a famous philosopher and scientist in the 17th century, compared animals to clocks
and other machinery and is known for cutting them open while they were still alive so he could see how they were driven.
98 P. Waldau, Animal Law and Welfare: International Perspectives (Ius Gentium, 2016) 15.
99 S. Wise, ‘Dismantling the Barriers to Legal Rights for Nonhuman Animals’, (2001) 7, Animal Law
10.
100 ‘World Animal Net Directory’, [online via www.worldanimal.net]. 101 ‘What is the Nonhuman Rights Project?’, [online via
http://www.nonhumanrightsproject.org/overview/].
102 S. Wise, ‘ The Legal Thinghood of Nonhuman Animals’, (1995-1996) 23 (3), Boston College
case.103 If this writ will be accepted in court, this would definitely be a slight victory for the NhRP, as it would establish some kind of personhood for the chimpanzees. However, judges all over the US keep denying the writs.104 As can be read in a recent ruling, the reason for not assigning the habeas corpus writ to a chimpanzee was because it is not capable to shoulder responsibilities.105
There are more court cases on behalf of animals in the US. In 2004, an appeals court upheld the ruling that marine mammals such as cetaceans do not have standing under the federal laws designed to protect endangered species.106 The court recognized that animals have many legal rights and that a statutorily suit in the name of an animal is possible, just as a suit in the name of a company or the mentally disabled. However, the cetaceans lacked standing because the Endangered Species Act only allowed a person to commence a civil suit.107 The cetaceans, even though the Act is adopted for their protection, did not qualify as such. In another US case it were not the animals, but people who were denied standing to protect endangered species, because they did not suffer any direct injury from the change of laws that put the endangered species to risk.108
These abovementioned cases appear to be contradictory. A chimpanzee cannot be assigned a habeas corpus because it cannot shoulder responsibilities, but the same goes for mentally disabled and disabled people who are allowed to acquire the writ.109 The analogy between mentally disabled and animals is made in the cetaceans’ case to conclude animals have a standing, but only if the applicable law would give non-human species the right to bring a suit. In the Lujan case it was a non-human being who tried to bring the suit, but she lacked standing because she was not injured. It seems law will go out of its way to avoid acknowledgement of animals as legal persons who have standing and are able to bring a suit.
103 S. Wise, ‘ The Entitlement of Chimpanzees to the Common Law Writs of Habeas Corpus and de
Homine Replegiando’ (2006-2007) 37 (2), Golden Gate University Law Review, 271.
104 For example the ruling of the Supreme Court of the State of New York, NYSCEF DOC. NO. 48,
INDEX NO. 150149/2016.
105 People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d 148, 150-53.
106 United States Court of Appeals for the Ninth Circuit, Cetacean Community v. Bush, 12 February
2004 San Francisco, No. 03-15866.
107 Ibid, § 1532(20), p. 14794.
108 Supreme Court, Lujan v. Defenders of Wildlife (No. 90-1424), 504 U.S. 555, 12 June 1992. 109 H. Weihofen, ‘Commitment of the Mentally Ill’, (1945-1946) 24 (3), Texas Law Review, 311,329,
Considering how animals are treated in modern-day society, the court’s reluctance is not entirely surprising. The abovementioned contradictories reveal the biggest problem in the civil society groups that are trying to make legal persons of every individual animal. Now, this has only been tried with animals that have a proven sense of consciousness and ability, like whales and primates. However, when legal personality has been attributed to intelligent animals, the line can obscure and there will be precedence for attributing legal personality to all mammals, soon all living creatures. The complications then become obvious. Every cow waiting in the slaughterhouse will have the right to be free. People may be reluctant to get a companion animal because of a possible prosecution. Such a legal system is unthinkable, since people have created the legal system for humans. A different approach could be to attribute legal personality to species of animals, instead of to individual ones. This might appear strange, as species do not behave as one and are not confined to one state territory. However, an analogy to indigenous peoples can be made here. Indigenous peoples qualify as a group of people who, for example, have the right to self-determination.110 This is a right they enjoy as a group of beings, not every individual on itself. With this method, an individual animal would not count as a legal person in domestic legislation. The legal system is here to protect us and we need the ecosystem for our protection. Therefore, species will be attributed a legal personality under legislation that is adopted with the objective to ensure their survival. In domestic legislation, this differs in each country. On the international plane, this includes all biodiversity conventions, such as the CBD.
§ 3.3 The Attribution in Practice
An illustration of the practice is in order. As previously discussed, the principle would have to be created in municipal legal systems. Municipal courts are often reluctant to apply international agreements directly within their country. They encounter difficulties with hierarchy, sovereignty and democratic implications.111 In some municipal legal systems, mostly civil law systems, international law forms an integral
110 Article 3, United Nations Declaration on the Rights of Indigenous Peoples. 111 Shaw (n 83) 128.
part of the domestic legislation.112 Common law countries are more reluctant to apply international treaties, while the majority considers customary law as part of their municipal legal system.113 However, courts are increasingly using international law as inspiration for the interpretation of domestic rules. Especially in developing countries, courts tend to use international instruments to interpret domestic rules regarding environmental issues.114 Also in the Netherlands, the Dutch court recently used European and international law as inspiration to their decision that the Dutch government should cut its emissions.115 International law can thus be used as inspiration for domestic courts to interpret their own conservation measures, or lack of these, to come to a conclusion in favour of biodiversity conservation, whilst attributing a legal personality to species. The international sources that serve as inspiration is not confined to the CBD, but can include all biodiversity treaties. Other examples are the previously discussed CITES, but also the Convention on Conservation of Migratory Wild Species of Wild Animals, or regional conventions such as the Convention on Wetlands.116 Since the objective is the protection and conservation of biodiversity, the widely recognized IUCN and its Red List of Threatened Species can offer guidance.117 This list contains information on the conservation status of animal, plant and fungi species and can function as an argument for ruling in favour of an endangered species. The previously discussed language of the CBD might cause a hindrance with this method, as it is often vague and difficult to enforce. For instance, a State Party could defend itself by stating it was not possible or appropriate to comply. Arguments for this statement are not hard to think of. Any developing country could state its lack of financial resources as a reason. However, this will not always suffice in practice. A solution for avoiding the problem will be an onus on the State Party for not complying. For example, when a state is challenged before a court for a breach of article 8(a) of the CBD, it is obliged to demonstrate it was not possible or appropriate to protect an area. The threshold for a breach will ultimately be formed by jurisprudence. A possible threshold is a GDP
112 Ibid 123. 113 Ibid 120.
114 E. Benvenisti, ‘Reclaiming Democracy: the Strategic Uses of Foreign and International Law by
Domestic Courts’, (2008) 102 (2), The American Journal of International Law, 261
115 Rechtbank Den Haag, Urgenda v. De Staat der Nederlanden, C/09/456689, 24 June 2015. 116 An oversight of all biodiversity-related conventions can be found on <www.cbd.int/brc/>
117 The IUCN Red List of Threatened Species, [online via
below a certain amount whilst conservation through tourism has already been tried but failed. In that manner, more requirements can develop.
With this method, domestic courts are able to interpret the domestic legislation within the international biodiversity conventions and conclude that species have a legal personality. That still leaves the question to who the plaintiff would be in such a case, as animal species do not have the capacity to file a case.
The fact that animals cannot be plaintiffs does not mean they cannot enforce their rights in court. Children lack this capacity as well, but they are entitled to a set of rights in both international and domestic law and they can get their parents or guardians to enforce these rights in court. If an analogy can be made between children and animal species, then who would their guardians be? The most obvious answer would be the NGOs that aim to protect and conserve animals all over the planet. As previously discussed, there are more than 17,000 groups active that aim to do so. However, there is no legal basis that they are entitled to give animals a standing. This will have to be developed simultaneously with the development of the legal personality of animal species. The concept of NGOs as guardians can be inspired by Principle 10 of the Rio Declaration and the international agreements it influenced, such as the Aarhus Convention. Principle 10 is adopted at the Earth Summit in 1992, the same Summit when the CBD opened for ratification. Principle 10 aims to promote public participation, access to information and access to justice in environmental matters. Concerning the latter, it states that ‘effective access to judicial and administrative proceedings, including redress and remedy, shall be provided’.118 This could be interpreted in a way that State Parties to the Rio Declaration should take effort to provide access to justice for NGOs and other civil society organizations. In addition, many animal protection NGOs have experience with lawsuits. Therefore, NGOs are best suited as guardians for animal species.
If courts attribute legal personality to species and other courts adopt this norm, it will ultimately become a general principle of international law recognized by civilised nations. This means it is a source of law for the ICJ and will have to be applied on the international plane as well. Since States and international organizations are the only ones that have a standing in international law this may seem irrelevant,
