BIOLOGICAL DIVERSITY AND ENVIRONMENTAL LAW INTERNATIONAL COLLOQUIUM TO THE MEMORY OF Cyrille de Klemm
PROCEEDINGS, C.o.E ENVIRONMENTAL ENCOUNTERS No.48, 159-165pp.
AN ATTEMPT TO PUT SEA TURTLE PROTECTIVE LEGISLATION IN THE MEDITERRANEAN INTO PERSPECTIVE - TOWARDS A MORE EFFECTIVE IMPLEMENTATION OF THE BERN CONVENTION Lily Venizelos MEDASSET - The Mediterranean Association to Save the Sea Turtles Paris, March 30-31, 2000
Background: Before the 1960s, national governments showed little concern for the welfare of Mediterranean sea turtles. Although there was general conservation legislation, specific regulations for their protection and management were incidental, or non-existent. International agreements and national legislation gradually emerged to mitigate human impact on these species. Sea turtles are flagship species for both local and international conservation around the world; conserving the turtles is protecting the seas and coastal areas, which means protecting a complex, interdependent world in which humans are included. 1 New legislation to protect sea turtles was incorporated into existing conservation laws. In many countries, sea turtles are still regarded as both fisheries and wildlife and are often placed under both authorities. As a result, contradictory legislation has often been enacted, causing confusion controversy and leading to inactivity and denial of responsibility. 1 Tourism, the fastest growing industry in the world, has enormous impact on both of the turtle habitats. Fisheries cause death to many non-target species each year, including tens of thousands of sea turtles. In some Mediterranean countries, they and their eggs are still consumed. It is very important that each local population should have protection to sustain viability. The Law. Besides stressing the protection of bio-diversity within nature, laws also take economics and culture into account. If the law is considered to be unjust and contrary to traditional rights, it will be ignored. Therefore, it is important when drafting legislation, to attempt to achieve accord with the local people, who are “often affected the most but consulted the least”. Sea turtle management is as much about people as about wildlife: In the end, it is politics - not biology. 1 Legislation must be clear and precise, taking into account the basic biology of the creature, its delayed maturity and the importance of nesting females, be easily enforced and with significant penalties and include habitat protection. It is important to limit the numerous exceptions to the requirements of nature conservation legislation, like agriculture. “Nature conservation law must develop from a law on protected species and areas, to a comprehensive regulatory regime for the conservation and sustainable use of nature and natural resources.” 3 National conservation laws for these species should reflect international agreements such as the Bern Convention on the Conservation of European Wildlife and Natural Habitats. 1
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Planning and sectoral authorities. These must not be allowed to ignore conservation aspects and the findings of Environmental Impact Assessments must be complied with. All decisions with adverse environmental impact should be subject to appeal and if necessary judicial review. Conservation institutions must be given the power to take the conservation related decisions and Legislation should not restrict participation to a few selected environmental groups. 3 Unfortunately, few non-governmental organisations (NGOs) have the resources to pursue environmental cases through the courts. Perhaps, with the American courts now imposing enormous fines for environmental infringements and the resulting funds to be spent on the environment, now is the time for Environmental Legal Aid (ELA) to be introduced, making those found guilty of environmental “crimes” contribute to an ELA fund. This would allow NGOs to use the courts and administrative bodies to secure better enforcement of existing laws. 5 Enforcement. For successful enforcement of nature conservation legislation, the active participation of the public and of environmental organisations, access to administrative and judicial processes should be easy and open to all conservationists. 3 2 To quote J. G. Frazier : “As a rule, "top-down" management is ineffective: no amount of laws, decrees, protected areas, action plans, lists of endangered species, or research projects will assure the conservation of an animal or its habitat--especially if it migrates over half the planet and takes decades to mature. Community-based conservation (CBC) is essential for realistic, longterm conservation of shared resources.” Implicit in the organisation, rules and procedures of the Bern Convention is the concept that all Contracting Party representatives on the Standing Committee are “on the side of the environment”. In practice this is open to loose interpretation, and the need to tell a government representative that he is being “economical with the truth” is not something to be taken lightly and is largely left to the NGOs, whose standing is little more than “Observers”. 6 Zakynthos – a case in point. For 17 years MEDASSET has been fighting to reverse the escalating deplorable situation in the important loggerhead turtle nesting habitat of Laganas Bay in the Ionian Island of Zakynthos and in 1984 alerted the Bern Convention Secretariat to the situation. The Secretariat opened a file on the issue in 1986, carried out two on the spot assessments and tried to get the Greek Government to carry out a number of recommendations. In 1994, MEDASSET made a formal complaint to the EC regarding the Greek State’s non-implementation of protective legislation and total violation of Council Directive 92143/EEC. It was renewed each year until 1997, when the EC (DG XI) decided to put the file in abeyance. Immediately MEDASSET made a complaint to the European Ombudsman regarding the lack of action by DG XI, and at last some action was announced following an EC on-the-spot assessment. There were thirteen years of struggle by the Bern Secretariat, prevarication by the Greek Government and an “analysis of the legal position in Zakynthos” (1996), prepared by Cyrille de Klemm 8 which showed that legal barriers were not responsible for the Government of Greece's failure to take any decisive action in this matter. At last, in 1999, expressing "dissatisfaction" with the environmental protection, the EC opened an infringement procedure against Greece, the case was taken to the European Court of Justice and European -2-
Structural Funds were blocked in the area. Faced with the court action and funding sanctions the Greek government announced at the 1999 Bern Standing Committee Meeting that the Presidential Decree setting up the Zakynthos National Marine Park had been signed. The announcement was followed by uproar on Zakynthos, with concern at the lack of measures dealing with compensation for “damaging activities” and a feeling that an unwanted decree was being imposed on them against their wishes. The 17 years of experience in this matter has shown MEDASSET that the Bern Convention Secretariat have an excellent overview of environmental problems in Europe and the EC should be working closely with them towards resolution of the problems. It is a pity that the EC did not pay more attention to both the Bern Standing Committee and the NGOs over many years, and less to the statements of the Greek government, a positive resolution would have been achieved MUCH more quickly. The Bern Bureau has a massive and important workload with a small budget. Its officers should be able to expect closer co-operation from the signatories, including the EC, who are each required under article 6 to take appropriate and necessary legislative and administrative measures. It is important to remember that the 1979 Bern Convention on the Conservation of European Wildlife and Natural Habitats constitutes for the EC a binding international agreement. 4 Political considerations aside, the Bern Convention is a necessary and powerful Convention with much good work to its credit. References: 1. H. A. Reichart (1999) Grassroots Stakeholders and National Legislation. In: Research and Management Techniques for the Conservation of Sea Turtles. K. L. Eckert, K. A. Bjorndal, E A. Abreu-Grobois, M. Donnelly (Editors). IUCN/SSC Marine Turtle Specialist Group Publication No. 4, pages 221-223. 2. J.G. Frazier (1999) Community-Based Conservation. In: Research and Management Techniques for the Conservation of Sea Turtles. K. L. Eckert, K. A. Bjorndal, E A. AbreuGrobois, M. Donnelly (Editors). IUCN/SSC Marine Turtle Specialist Group Publication No. 4, pages 15-20. 3. L. Gundling (1996) Legal Obstacles to the Application of Nature Conservation Legislation. Report to the 15th Meeting of the Standing Committee of the Convention on the Conservation of European Wildllife and Natural Habitats (Bern Convention). TPVS(96)12, 17 pages. 4. E. Levantis & N. Lalotis (1998) Turtle Conservation (Caretta caretta) in Laganas Bay, Zakynthos, (Greece). Report to the18 th Meeting of the Standing Committee of the Convention on the Conservation of European Wildllife and Natural Habitats (Bern Convention). T-PVS(98)65, 7 pages. 5. Secretariat Memorandum prepared by the Directorate of the Environment and Local Authorities (1999). Workshop on “The Bern Convention and National Case Law: Effecting Implementation”. Report of the Workshop to the Convention on the Conservation of European Wildllife and Natural Habitats (Bern Convention). TPVS(99)34, 134 pages. 6. V. Koester (1996) Pacta Sunt Servanda. Environmental Policy and Law. 26(2, 3), 78-91. 7. MEDASSET (1998) Marine Turtle Conservation in Zakynthos, Laganas Bay, Greece. Update Report to the 18th Meeting of the Standing Committee of the Convention on the Conservation of European Wildllife and Natural Habitats (Bern Convention). T-PVS (98)48, 10 pages th 8. C. de Klemm (1996) Analysis of the Legal Position in Zakynthos. Report to the 16 Meeting of the Standing Committee of the Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention). T-PVS (96) 96, 32 pages.
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