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International standards for the effective
management of protected areas: An overview
Estándares internacionales aplicables al manejo
efectivo de áreas protegidas: Una visión general
Johana Liseth Robles Arias
Independent legal researcher
City:
Quito
Country:
Ecuador
Original article (research)
RFJ, No. 11, 2022, pp. 125 - 159, ISSN 2588-0837
ABSTRACT:
Protected areas are a necessary means to ensure
the survival of species, maintain healthy ecosystems, and
preserve landscapes and seascapes in their natural state. Today,
the environmental crisis has accelerated the loss of biodiversity.
This has direct repercussions not only on the environment but
also on human health and well-being. Hence the importance
of protected areas in reversing the loss of biodiversity and
ensuring life on this planet. This article is therefore dedicated
to analysing the Guidelines for Protected Area Legislation
issued by the International Union for Conservation of Nature
(IUCN). This article presents important parameters such as
the inclusion of environmental principles or best management
practices to guide States in the development of regulations.
What is essential is that the regulations are clear and can be
implemented. Concerning management plans, these must
contain achievable objectives and actions to achieve long-term
preservation. They must also be logically structured to achieve
the expected changes. Ultimately, States need to commit to
protecting their biodiversity and use the most innovative
technological tools so that the regulatory system that is
implemented can reverse biodiversity loss and thus ensure that
humans can live in harmony with nature.
DOI 10.26807/rfj.v11i11.421
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KEYWORDS:
biodiversity, climate change, nature conservation,
international law, endangered species, nature reserve.
RESUMEN:
Las áreas protegidas son medios necesarios
para asegurar la supervivencia de especies; mantener a los
ecosistemas sanos y preservar paisajes marinos y terrestres
en su estado natural. En la actualidad, la crisis ambiental ha
acelerado la pérdida de biodiversidad. Esto tiene repercusiones
directas no solo en el medio ambiente sino en la salud y
bienestar del ser humano. De ahí la importancia que adquieren
las áreas protegidas para revertir la desaparición de la diversidad
biológica y asegurar la vida en este planeta. Por ello, este artículo
se dedica a analizar las Directrices para la Legislación relativa
a Áreas Protegidas emitida por la Unión Internacional para
la Conservación de la Naturaleza (UICN). En este artículo se
presenta parámetros importantes como la inclusión de principios
ambientales o prácticas óptimas de manejo para orientar a los
Estados en el desarrollo de normativa. Lo fundamental es que
la normativa sea clara y pueda implementarse. Con respecto
a los planes de manejo, estos deben contener objetivos y
acciones realizables para lograr la preservación a largo plazo.
Igualmente, deben estructurarse de manera lógica para lograr
los cambios esperados. En definitiva, es necesario que los
Estados se comprometan a proteger su biodiversidad y utilicen
las herramientas tecnológicas más innovadoras para que el
sistema normativo que se implemente pueda revertir la pérdida
de biodiversidad y así lograr que los seres humanos puedan
vivir en armonía con la naturaleza.
PALABRAS CLAVES:
biodiversidad, cambio climático,
conservación de la naturaleza, Derecho Internacional, especie
en peligro de extinción, reserva natural.
JEL CODE:
F13, Q54.
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INTRODUCTION
Some places are home to a unique diversity of animal
and plant species. For example, the Galapagos Islands were
declared a natural world heritage site in 1978 by the United
Nations Educational, Scientific, and Cultural Organisation
(National Institute of Cultural Heritage, n.d., para. 1). Their
richness includes giant tortoises, frigate birds, iguanas, sea lions,
dolphins, red mangroves, cactus, etc. Unfortunately, the islands
are threatened by human intervention. Overfishing, pollution
of water sources, logging, the introduction of invasive species,
and climate change, among others, have accelerated the loss of
biodiversity globally.
An effective tool to protect these places is the law.
If government regulations, plans, and actions are properly
developed, biodiversity conservation can be achieved. It
should be emphasised that states cannot achieve this goal
alone. The protection of these biodiverse areas requires the
commitment of the international community. For example,
global environmental conventions are the result of negotiations
and agreements between states to avoid environmental crises
such as mass extinction of species, loss of ecosystems, global
warming, etc.
Environmental problems directly affect human
beings. For example, the coronavirus pandemic is caused
by the environmental crisis we are currently experiencing.
The Ecuadorian newspaper El Comercio (2021) published
an interview with David Quammen, a specialist in zoonotic
diseases, who mentioned the following:
The ultimate cause of these spills or overflows that bring
new viruses to humans is disruptive human interaction
with wildlife, especially in highly diverse ecosystems,
where so many animal species exist, all carrying unique
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viruses. When we disturb these ecosystems, to extract
resources, we expose ourselves to them. (p. 10)
The lesson from this is that everything is interconnected.
Thus, environmental degradation has effects not only on the
natural environment but also on human beings. The protection
of protected areas becomes relevant in the face of new global
challenges such as the coronavirus pandemic. States must
prevent crises such as these from taking us by surprise again.
The coronavirus pandemic is having devastating
effects. However, restrictions imposed to prevent its spread
have reduced human pressure on protected areas. Satellite
imagery shows improvements in air quality in all countries that
have been affected by the pandemic. However, many of these
areas depend on resources generated by tourism (Corlett et al.,
2020, p. 2). The coronavirus has caused a breakdown in society
in the social, educational, and health fields. The environment
has benefited to some extent from the reduction of greenhouse
gases. These benefits will not last over time due to the gradual
return to normality implied by large-scale industrial production.
The study entitled
Impacts of the coronavirus pandemic
on biodiversity conservation
(Corlett et al., 2020) refers to the
negative effects of the coronavirus pandemic on biodiversity
conservation. For example, research to improve protection
strategies has been affected by the closure of universities and
research laboratories. Education has been delivered through
technological means, but many of the subjects are practical.
This has caused several problems for biodiversity specialists.
Nevertheless, activities have been resuming because several
industrialised countries have already immunised most of the
population.
The objective of this research is to analyse the
importance of declaring protected areas to safeguard biodiversity
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at the global level. This analysis will focus on studying the
international standards issued by the world environmental
authority (IUCN) to guide States in the development of
regulations and public policies for the effective governance
of protected areas. These guidelines guide states to fill gaps in
their legislation on these issues. With this, governments can
have better clarity in the design of environmental policies.
Governments must incorporate these management principles,
which are based on extensive research, to refine conservation
strategies. These parameters have been carefully developed so
that they can be incorporated or adapted into any legislation.
One of the central points is that planning for the creation
and management of protected areas should be developed with
an ecosystem approach. For the development of this guide,
professionals from various fields were involved, which is why
it has a multidisciplinary character. Not only experts in biology
and protected areas where needed. To achieve optimal results,
professionals from law and other fields were also involved. In
this research, I will also address the challenges of incorporating
these guidelines into national regulations and management
plans. What is important is that legal drafters and authorities
make the protection of natural resources a priority. To achieve
this, joint work and good planning are needed.
The establishment of constitutional precepts is
key within the regulations. For example, the principles of
precaution and intergenerational responsibility are substantial
within the supreme law. Thus, infra-constitutional regulations
must conform with these precepts. Otherwise, antinomies arise
between normative statements. Finally, I will present a case
study focused on the Galapagos Islands (the national park and
the marine reserve) to assess the actions of the authorities in
this area and to determine whether international guidelines for
the management of protected areas are incorporated.
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For all these reasons, governments must look to the
future and use new tools to achieve a real change in their
legislation. A change that will allow these biodiverse sites to be
effectively protected by law.
1
.
PROTECTED AREAS: AN OVERVIEW
Biodiverse areas can be declared protected areas through
internal regulations. Protected areas are a way of preserving
nature in its natural state. An interesting article in
National
Geographic magazine
states: “There are approximately 200,000
protected areas in the world that are managed according to their
category” (Gibbens, 2018, para. 3). The declaration of protected
areas is an important tool in the fight against biodiversity loss,
so it is important to have scientific knowledge of the area in
question to achieve conservation goals. Likewise, the problems
to be eliminated must have been identified beforehand. All this
is to design an appropriate management plan.
Given the importance of protected areas, it is important
to examine their definition to understand their scope. For this,
the Convention on Biological Diversity (hereinafter CBD) and
the definition given by the International Union for Conservation
of Nature (hereinafter IUCN) are taken as a reference. The CBD
(1992) defines a protected area as: “a geographically defined area
that has been designated or regulated and managed to achieve
specific conservation objectives” (art. 2). Substantial elements of
protected areas are found in this conceptualisation. These places
have a geographically delimited extension, and their purpose
is the conservation of biodiversity. It is also inferred that the
protection of biotic beings and ecosystems is in situ.
The International Union for Conservation of Nature
(2008) document entitled: Guidelines for the Application of
Protected Area Categories provides the following definition:
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A protected area is a clearly defined geographical
space, recognised, dedicated, and managed, through
legal or other effective means, to achieve the long-term
conservation of nature and its ecosystem services and
associated cultural values. (p. 10)
This conceptualisation is more comprehensive than the
one mentioned above. Below is a table highlighting the most
important elements that emerge from these definitions.
Table 1:
Essential Elements of Protected Areas
Term
Description
Comment
Clearly defined
geographical
space
The term “space” is
three-dimensional: it
encompasses airspace,
surface, underground
and underwater
spaces. This space
must be defined and
agreed
A protected
area must have
a beginning and
an end. Only
the designated
authorities can
decrease or
increase its size.
Acknowledged
These protected
sites should be
implemented in the
World Database of
Protected Areas for
global recognition.
Protected areas
must be rec
-
ognised in some
way.
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Managed by
legal or other
means
To exist, a protected
area does not
necessarily have to be
legally recognised.
Protected areas
can be recognised
by legal means
and managed by
the state or by
communities.
In Ecuador, all
protected areas
are managed by
the State through
the National
System of
Protected Areas.
Long-term
preservation
It means that the
authorities must
commit themselves
to conserve these
biodiverse sites in
perpetuity. Actions
must be sustained
over time.
The fact that
governments
change does not
imply that the
rights that have
been recognised
for protected
areas will be
undermined or
undermined.
Source:
IUCN (2008, pp. 9-12)
Own elaboration
For a site to be considered a protected area it must
meet certain requirements such as: having a clearly defined
geographical space, being recognised in some way, and having
the preservation of biodiversity as its main goal. Biodiversity is
a very complex issue and ranges from the simplest to the most
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complex elements. Having examined the essential elements of
protected areas, it is essential to define biodiversity. To better
understand the scope of protection that these areas have. With
the establishment of protected areas, States seek to protect not
only animal and plant species but all elements of biodiversity.
For this purpose, reference is made to the definition found in
the Convention on Biological Diversity. In this international
instrument, among the terms used, it is mentioned that
biodiversity is:
The variability among living organisms from all
sources including, inter alia, terrestrial and marine
ecosystems and other aquatic systems, and the
ecological complexes of which they are part; this
includes diversity within species, between species, and
of ecosystems. (Convention on Biological Diversity,
1992, art. 2)
Biodiversity encompasses simple and complex systems
such as ecosystems. In these complex systems, biotic and abiotic
beings interact. The scope of protection of protected areas is
therefore very broad.
The authorities in charge of the management of these
protected areas must create environmental policies with a
holistic vision to safeguard all components of biodiversity
(animal and plant species, organisms, ecosystems, etc.). For
example, the causes of mass extinction of species are multiple,
but they are connected. Pollution of water sources prevents
these species from surviving.
If we add to this the problem of overfishing, we can
understand that there are multiple reasons for the disappearance
of these species. To tackle these problems, it is not enough to
counteract just one of the causes, such as indiscriminate fishing,
but comprehensive policies are required. Dissuasive policies
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prevent the degradation of ecosystems so that all species can
survive.
Continuing with this study, the international categories
of protected areas implemented by the IUCN are mentioned.
IUCN (2008) established six categories as a reference
framework for States in 1994. This classification is contained
in the document Guidelines for the Application of Protected
Area Management Categories. The objectives of protected areas
vary, but the rationale for their creation is the conservation
of biodiversity. For example, category I include strict nature
reserve and wilderness area. In areas that have been designated
in category I, human access is prohibited because they are very
fragile areas. The aim is to avoid negative disruptions to the
environment, so severe restrictions have been put in place.
If one takes as a reference the global data source on
protected areas (Protected Planet), in which several examples
can be found, one of these is the Tsaratanana nature reserve
which has been designated in the first category. One of these is
the Tsaratanana nature reserve, which has been designated in the
first category. In this reserve located on Africa’s largest island,
the vegetation varies according to altitude, and chameleons and
endemic species can be found (FAPBM, 2021, para. 1). Because
it is an area with fragile ecosystems, the authorities in charge of
protected areas on this island determined that the Tsaratanana
reserve should be included in category Ia, which corresponds
to a strict nature reserve (Protected Planet, 2021). As a result,
human access to this reserve is prohibited.
Protected areas are not homogeneous and have been
classified according to their particularities. As mentioned
above, in category I, access to humans is prohibited due to the
vulnerability of their ecosystems. In other categories, such as
category II, which corresponds to national parks, less severe
restrictions are imposed, thus allowing certain recreational
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activities. Ecuador currently has 11 national parks such as
Yasuní (Ministry of Environment, Water and Ecological
Transition, 2022, para. 1)
1
. The objectives set out in category
II are found in this definition taken from the IUCN Guidelines
for the Application of Protected Area Management Categories
(2008):
Category II protected areas are large natural or
near-natural areas established to protect large-scale
ecological processes, together with the complement
of species and ecosystems characteristic of the area,
which also provide the basis for environmentally and
culturally compatible spiritual, scientific, educational,
recreational, and visitor opportunities. (p. 19)
Access to humans in national parks is allowed but
environmentally damaging activities such as large-scale fishing
are prohibited. These examples are intended to demonstrate
that thorough research by experts is needed to understand the
environment and to identify the problems affecting species and
ecosystems in these areas. In the same way, to include them in
the category that most closely resembles their objectives. Based
on this exemplification, a table summarising the fundamental
aspects of the six categories of protected areas according to the
IUCN is presented:
1
In the Yasuní National Park, extractive activities have been allowed, which
has led to alterations in the ecosystems and loss of biodiversity. As a result,
Ecuador has violated international treaties by allowing mining activities in
this biodiverse area, thus ignoring the intangibility of protected areas.
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Table 2:
Classification of protected areas
Category
Description
Fundamental
elements
Comment
Examples
Category
I: Strict
protection
It is classified as
a strict nature
reserve and
wilderness area.
Restrictions are
strict due to
their fragility.
The
establishment of
infrastructure is
not allowed in
these areas.
The main
objective is
to maintain
ecosystems
and species in
their natural
state, free
from human
intervention.
Few places
receive this
protection
and are free
from human
activities.
The White Goat
Wilderness
Area in Canada
is strictly
protected to
protect its
natural richness,
which includes
waterfalls and
alpine meadows.
Category
II: National
Park
The main
objective is
to protect
functional
ecosystems.
Research,
recreational,
educational, etc.
activities are
allowed in na
-
tional parks.
These areas are
generally large.
Yellowstone
National
Park was
established
in 1872 and
is the oldest
national park
in the United
States.
In the Galapagos
National Park,
you can find
unique species
such as giant
tortoises.
Category
III:
Monument
or natural
feature
The main goal is
to protect a nat
-
ural monument
such as a cave,
an ancient grove
of trees, etc.
They are
usually limited
in extent.
However, some
monuments
may require the
protection of a
large ecosystem
to prevent their
destruction.
It is difficult
for a natural
monument
to persist
without the
protection
of its
surroundings.
In the natural
environment,
everything is
connected.
The natural
monument La
Portada de Chile
is made up of
volcanic rocks
thousands of
years old and is
protected be
-
cause of its nat
-
ural and cultural
value.
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Category
IV:
Habitat/
species
The primary
objective is
to conserve
specific habitats
or species.
It seeks to
protect or
restore species
and ecosystems.
Species
receiving this
protection are
of international
importance.
This category
functions to
protect species
that are in im
-
minent danger
of extinction.
The National
Wildlife Refuge
in Georgia was
established
to protect
endangered bird
species such as
the American
bald eagle.
Category V:
Protected
Landscape/
seascape
This category
is important
at the scale
of landscape
and seascape
conservation.
Some category
V areas serve as
buffer zones.
This category
is necessary to
restore entire
natural sys
-
tems.
The Clark Lake
Preserve is
in Alaska. It
was created to
protect streams
and lakes in
this natural
landscape.
Category
VI:
Protected
area with
sustainable
use of
natural
resources
The aim is to
protect natural
ecosystems
and sustainably
use natural
resources.
The use
of natural
resources is not
on a large scale.
This category
is intended
to facilitate
scientific
research and
environmental
monitoring.
It is difficult
for natural
resources
to be used
without
causing
damage to the
environment.
It is dangerous
to allow these
activities in
areas that have
high degrees
of diversity.
The Caleta
de los Loros
Reserve in
Argentina
receives tourists
throughout the
year.
Source:
IUCN (2008, pp. 16-29)
Own elaboration
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Protected areas vary according to their specific
conservation objectives. IUCN has developed six categories to
help States better plan the actions that can be taken to conserve
these areas depending on their characteristics. Having discussed
the essential elements of protected areas and their classification,
I will now turn to the obligations that arise for states when they
declare an area as a protected area. This is important to achieve
regulations and policies that ensure their preservation.
The declaration of protected areas creates obligations
for states to implement concrete actions to protect their
biological diversity. For example, criminal law can be used
to punish the illegal trafficking of endangered species. The
aim is to reduce the incidence of these crimes and prevent
further damage to these natural resources. It is worth taking
as a reference the judgment No. 20331-2017-00179 issued by
the Specialised Criminal Chamber of the Provincial Court of
Guayas in which this crime is configured (2017). The judgment
is relevant because, for the first time, those responsible for
attacking endangered species in a protected area such as the
Galapagos Marine Reserve are being punished.
The events of the above-mentioned case took place
on 13 August 2017 in the province of the Galapagos. On that
day, the cargo vessel Yuan Yu Leng 999 was detained for being
inside the marine reserve of the archipelago. In this inspection,
three hundred tons of fish corresponding to species on the red
list according to the International Union for the Conservation
of Nature (IUCN) for being in danger of extinction were found.
Hammerhead and silky sharks were found among the cargo.
Hammerhead sharks are sought after in the Asian market for
their cartilage-rich dorsal fin.
The magistrates of the Court decided to sentence the
twenty Chinese nationals who were apprehended in flagrante
delicto to imprisonment for one to three years, depending on
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their participation. The crime of illegal transport of protected
species of which the crew members of the Chinese boat were
accused is typified in the Código Orgánico Integral Penal
(2014, art. 247). The legal right protected by the legislation
is enshrined in the Constitution of the Republic of Ecuador
because the fundamental norm recognises nature as a subject
of rights.
It is interesting to examine the Court’s arguments
for this landmark decision in the defence of nature. The
magistrates in this historic ruling pointed out the importance of
protecting protected areas due to their natural wealth and the
environmental services they provide. They also mentioned that
this illegal shark shipment affected the health of ecosystems
(Judgment No. 20331-2017-00179). According to the Court
and the arguments of experts in the field, the importance of
sharks lies in the fact that they are at the top of the food chain
and help directly or indirectly to maintain the balance between
other species. They also serve as indicators of the state of the
oceans. Another essential point for a favourable judgement was
the importance of safeguarding and maintaining ecologically
balanced ecosystems. As demonstrated, the creation of these
protected areas has several benefits such as the restoration of
species and entire ecosystems.
2
.
INTERNATIONAL GUIDELINES FOR EFFECTIVE
PROTECTED AREA MANAGEMENT
For the effective management of protected areas,
States must develop appropriate regulations and management
plans to achieve the proposed conservation goals. Domestic
legislation must be brought into line with certain international
management principles such as system-wide planning or
integrity in perpetuity. Equally, environmental principles
must have a binding force. To achieve this, they need to be
incorporated into state constitutions. Relevant environmental
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principles such as the precautionary principle are recognised
in international instruments. International environmental
policies and global environmental conventions are key tools for
the development of regulations. International environmental
instruments such as conventions and general principles
create obligations for States. For example, the Convention on
Biological Diversity (1992) is:
The first multilateral treaty to address biodiversity as
an issue of global importance, demonstrating concern
about its decline and recognising its importance for
the viability of life on Earth and human well-being.
(National Commission for the Knowledge and Use of
Biodiversity, 2022, para. 1).
States that have ratified the CBD must establish
measures in their legislation that lead to the protection of all
elements of biodiversity. For the law to effectively address all
aspects required for the management of these biodiverse areas,
States need to be guided by the IUCN Guidelines for Protected
Area Legislation (2012). The following is an analysis of the
most relevant parameters found in this comprehensive guide.
2.1. Principles and obligations for the planning and
development of internal regulation
Regulatory planning for the management of
protected areas must be done with a holistic approach. States
must also commit themselves to incorporating international
recommendations. Among the principles to be observed is
integrity in perpetuity, system-wide planning, management
based on conservation objectives, and the use of a range
of protected area categories. The principle of integrity in
perpetuity implies the long-term conservation of protected
areas. The Guidelines for Protected Areas Legislation state the
following:
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Legal drafters should include in protected area
legislation those decision-making processes, incentives,
and management tools that facilitate and promote the
long-term legal security of protected area designation.
The instruments available may vary depending on the
legal status of lands and waters designated as protected
areas. (IUCN, 2008, p. 20).
Protected areas should be a national priority. That
is, it is up to governments to set goals and ensure a long-term
budget for their management. The defined guidelines must be
sustainable over time. To ensure conservation commitments, it is
essential to designate authorities in charge of the administration
of protected areas. The rights and obligations of the entities should
be established in the regulations. For example, the Ministry of
Environment through the Directorate of the Galapagos National
Park is the entity responsible for the management of the
Galapagos National Park and the Galapagos Marine Reserve. The
obligations of this entity are established in the Organic Law of
the Galapagos Special Regime (2015, art. 20).
Another strategy to ensure the conservation of
protected areas according to the IUCN is:
The need to entrust the designation of any type of the
protected area to be integrated into the official system
to the highest political body of the territory concerned
(usually the legislature, the head of state, or, in cases
where the rules and legal framework are defined in
legislation, the minister in charge of protected areas).
(IUCN, 2008, p. 20).
If the objectives of these biodiverse areas are not
guaranteed to be met, the regulations must be reformed, but the
legal status of the area must not be undermined. The designation
of protected areas requires thorough research. They are not
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decisions taken lightly by governments of the day. Decisions
are taken at the highest level if they show positive results and
generally last over time. What ensures long-term conservation
is the stability and strength of institutions.
The principle of system-level planning means that
protected areas are managed as a whole, as the elements of
this system interact and are interrelated. “The most effective
way to plan for conservation is to address it at a broad scale
(i.e., from ecosystems, bioregional, and ecologically functional
landscapes and seascapes as a whole)” (IUCN, 2008, p. 26).
To ensure the comprehensive protection of protected areas,
states must implement actions that are consistent with their
environmental policy. To establish conservation objectives, it is
necessary to consider the significant environmental problems
to be counteracted. In this way, it is possible to act preventively
and protect biodiversity on a large scale. For example, to protect
marine areas, it is important to recognise buffer zones. The
official website of the Fundación Ambiental Acción Verde de la
República Dominicana (2017) states the following:
Buffer areas are protected areas that are established
around other protected areas with a higher level
of importance. They are created to buffer, control
potential impacts, and/or avoid physical damage that
threatens the integrity of the natural resources that
have been selected for legal protection. (p. 1)
Buffer zones act as a protective barrier for animal
and plant species outside the protected area to survive. At the
system level, it is not enough to implement regulations with
an individual approach. Regulations must have the potential to
solve macro-level problems.
The principle of managing conservation objectives
means that protected areas should be managed through a
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management plan that guides the management of the area in
question. As mentioned above, protected areas are classified
according to specific conservation objectives and the
designation does not reflect the effectiveness or otherwise
of management. In these IUCN Guidelines (2008) it is
mentioned that: “Management plans are formally recognised in
international law and policy as a necessary tool for a protected
area management” (p. 34). Management plans contain measures
and actions to be implemented by the authorities to prevent or
mitigate environmental problems in the areas concerned. They
are extensive documents detailing how these actions should
be implemented according to their characteristics. In parallel,
this guidance decrees that certain key elements should be
incorporated into the management plan:
A legal description of the area, management authorities,
description of the resources that justify its designation,
the objectives to be achieved, the main threats, activities
prohibited and permitted in the area, monitoring plan,
duration of the plan, and its review and updating cycle.
(IUCN, 2008, p. 35).
If management plans do not meet the proposed
expectations, it is because they were poorly designed and do
not reflect the priorities of the area. If properly planned, the
resources earmarked for their protection can be better managed.
In addition, you can increase your capacity to respond to
problems and undertake innovative initiatives using the latest
technology.
For each protected area, a management plan must be
created. The Guidelines state that “it is important to define the
legal status of such a plan once it has been approved. Such a
plan should have the necessary legal force” (IUCN, 2008, p. 36).
Management plans should be enforceable so that States assume
the obligation to put in place measures to ensure compliance.
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For example, the Management Plan for Protected Areas of
the Galapagos Islands for Good Living was approved by the
ministerial agreement (Ministerial Agreement 162, 2014).
This plan has the necessary legal force and is binding, which
ensures its observance. It is advisable to form a common inter-
institutional front to strengthen the regulations, as well as to
strengthen institutions and management plans to achieve long-
term conservation goals.
2.1.1. Axiological core in environmental matters
To guide states in their decision-making, it is crucial
to be guided by certain fundamental principles. The author
Jordi Jaria Manzano (2019) in his research entitled: The
principles of environmental law: Concretions, inadequacies,
and reconstruction, states that in environmental matters there
is the possibility of building an axiological core through the
incorporation of three principles that should be applied globally:
the precautionary principle,
in dubio pro natura
and the principle
of responsibility. The purpose is to commit states to care for
the environment and to establish timely policies and actions on
these issues. The precautionary principle has been recognised
in several international instruments because of its relevance.
The Rio Declaration on Environment and Development
(1992) incorporated this principle. This instrument states the
following:
To protect the environment, the precautionary
approach shall be widely applied by States according to
their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall
not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.
(Principle 15)
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When faced with suspicions of environmental
damage, states must take measures to avoid alterations to the
environment. In environmental matters, this principle is crucial
because it is not possible to be completely certain about the
magnitude of the damage caused by certain actions. For this
reason, the passivity of states is inadmissible. Professor Jordi
Jaria Manzano (2019) states that:
The precautionary principle aims to prevent
those activities whose development represents an
unacceptable risk, even if there is no certainty that
this risk will materialise, and therefore becomes a
conceptual matrix oriented to the channeling of human
transformation of the Earth System from the point of
view of risk limitation. (p. 420)
The precautionary principle is relevant to prohibit
environmentally damaging activities through the establishment
of legal precepts. For example, in protected areas, extractive
activities are not allowed because these disturbances can have
serious repercussions on ecosystems and affect animal and plant
species. There is insufficient information on all the problems
that these economic activities will bring, but it is known that
they will completely change the natural state. In the long term,
it will influence climate change.
The precautionary principle sets out guidelines for
States to add measures within their legislation to reduce or
eliminate risk factors. IUCN (2008) in the above-mentioned
Guidelines recommends certain actions for States to include
this principle effectively in their legislation:
Use all available information, including the best
available scientific information on hazards, human
influences, and risk factors, as well as indigenous and
traditional knowledge and practices, to characterise
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hazards, assess options and measures to address them,
and assign roles and responsibilities. (p. 39)
Technology is advancing at a rapid pace. This tool helps
in the development of new inventions that benefit protected
areas. Potential threats in these areas must be reduced or
eliminated through actions before irreversible damage such as
the disappearance of species occurs. Moreover, technologies
can be adapted and used to the benefit of these biodiverse
territories.
The principle of
in dubio pro natura
implies, according
to Ricardo Russo (2009): “a manifestation of the law by its
applicators, orienting it towards the understanding of the most
appropriate norm for the preservation of the biophysical basis
of social reproduction” (quoted by Manzano, 2019, p. 420).
When there are contradictions in environmental regulations,
what is most favourable to nature should be applied. In case
of possible violations of the natural environment, the most
favourable measures must be applied to prevent the damage
from materialising. This is how this principle is related to the
precautionary principle.
The principle of responsibility, according to Gregorio
Mesa (2011):
It implies the limitation of people’s sphere of autonomy,
constructed in the context of the liberal constitutional
tradition, concerning the forms, mechanism, and
methods of use, access, extraction, and appropriation
of nature and its elements and components, to maintain
equity and ensure sustainability. (Cited by Manzano,
2019, pp. 421-422).
To ensure that the rights of nature are not violated,
appropriate conservation regulations and mechanisms need to
be designed. For example, in protected areas, people’s rights are
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limited to achieving the proposed goals. Certain activities such
as hunting are not allowed in these areas. When environmental
infractions or crimes are committed, the corresponding
sanctions are applied. In the event of environmental damage,
natural persons, legal entities, or the state as a subject of
international law are obliged to take the necessary measures
to reverse the damage and to assume all the necessary costs.
Responsibility for the protection of the environment belongs
to everyone.
These optimization parameters, such as the
precautionary principle or the polluter pays principle, if
included in constitutional law, will have a positive influence on
the entirely legal system. The axiological content is the basis for
the correct development of law in all areas.
3. INTERNATIONAL TREATY OBLIGATIONS FOR THE
CONSERVATION OF PROTECTED AREAS
States must comply with the obligations set out in
global environmental treaties, covenants, and conventions.
These are mandatory in nature as they have binding force.
In reviewing national legal frameworks governing protected
areas, it is necessary to determine whether they are in line with
international standards. International treaties are extensive.
In this section, I will delve into the rules for protected area
conservation found in the Convention on Biological Diversity
to determine the obligations that arise for states.
The CBD (1992) covers a range of provisions regarding
the establishment of protected areas and the measures to be set
out in management plans or programs. Article 8 states: “Each
Contracting Party shall, as far as possible and as appropriate:
(a) Establish a system of protected areas or areas where special
measures need to be taken to conserve biological diversity”
(Art. 8). This precept obliges states to create systems of
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protected areas to safeguard biodiversity. The fundamental
axes of this convention are the protection of all components
of biodiversity. It also mentions the importance of education
and research in these areas. The CBD sets the parameters for
the creation and management of these biodiverse areas. The
importance of adapting internal regulations to these precepts
is highlighted.
To achieve true protection under the law, it is
necessary to develop mechanisms to ensure compliance with
an obligation. International treaties such as the CBD generate
obligations to guarantee the intangibility of protected areas.
4. GUIDELINES FOR ENSURING PUBLIC COMPLIANCE
WITH REGULATIONS
The purpose of criminal law is to protect important
legal assets such as the environment. Punishable conduct in
environmental matters, such as illegal trafficking in protected
species, is criminalised in most states’ criminal codes. For
these rules to be enforced, the offences must contain clear
definitions so that they can be understood by all. Penalties
must be proportionate to the harm caused. The establishment
of penalties is necessary to deter the commission of offences.
Civil penalties in environmental matters are essential
to compensate the injured party and where possible to redress
the damage caused. The Guidelines for Protected Areas
Legislation recommend regulating the following aspects: Cost of
environmental remediation. That is, the financial penalty should
be set following the damage caused. Community service can
be imposed on the offender. In this way, the offender assumes
direct responsibility for the effects of his actions. Within the
civil sanctions, the revocation of environmental permits or the
prohibition to continue carrying out environmentally damaging
activities must also be foreseen.
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Penalties are necessary, but they are not the only tool
available to protect nature. Education is a viable instrument
to encourage the protection of biodiversity. The Guidelines
recommend the following:
A good way to achieve this is to develop education
programs specifically targeted at schools and
municipalities to help local people appreciate the
significant benefits of establishing a protected area and
imposing certain restrictions on access and use. (IUCN,
2008, p. 219).
Schools and higher education institutions have an
important role to play in environmental education. The creation
of workshops to raise awareness about the importance of
protected areas is recommended to promote environmentally
friendly practices.
The value of environmental education is examined in
the article entitled:
Environmental Education in Environmental
Engineering: Analysis of the Situation in Colombia and Latin
America
. This research article it is stressed that: education must
be oriented towards sustainable development. It is necessary
to provide students with the knowledge, skills and attributes
necessary to promote environmental, social, and economic
well-being and to avoid compromising the needs of current and
future generations (Acosta, et al., 2020). Natural resources are
depleted through irrational use. For this reason, it is necessary
to encourage care for the natural environment.
One of the most innovative careers for training
specialists in environmental damage prevention and reduction
is Environmental Engineering. Unfortunately, curricula in Latin
America need to be updated to respond to current needs. In
Colombia, for example, only 5% of the curricula incorporate
courses that teach students strategies to face global environmental
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challenges. The subjects taught in this career should be aligned
with the sustainable development goals proposed by the UN
(Acosta, et al., 2020, pp. 10-11). Environmental education from
childhood generates positive effects, but it should be borne in
mind that the family environment is also a determining factor
in whether nature is cared for.
In the research entitled:
The need for ecocentrism in
biodiversity conservation
, it is highlighted that:
Biodiversity conservation does not have to be based
solely on human interests, but it is essential to promote
ecocentric values, primarily the conviction that species
and ecosystems have value and interests that should
be respected regardless of whether they serve human
needs and aspirations. (Bron et al., 2020, p. 1089)
Human beings should not be at the center of law.
Regulation must be oriented towards care and respect for
nature based on its intrinsic value. The rights of people and
nature must be safeguarded through public policy. Social and
environmental problems must be considered a priority in any
legislation.
Positive or negative public perceptions of the creation
of protected areas influence their success or failure. Community
development is often not considered a central issue in planning.
The resources generated for the conservation of these areas
should include the whole population. Management plans need
to incorporate mechanisms to improve social and educational
conditions. Also, access to health should be guaranteed.
According to Bennet (2016):
Community perceptions of the social impacts of
protected areas are generally assessed in terms
of the conservation projects taking place in the
areas concerned. Equity in the distribution of costs
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and benefits among all stakeholders such as local
communities, non-governmental organisations, and
local governments are determinants in generating
positive attitudes and support for conservation
projects. (Cited by Abukari and Benedict, 2020, p. 2).
The needs of local communities in protected areas must
be taken as priority issues to achieve a balance in these areas.
Local communities’ perceptions about the impact of protected areas
on livelihoods and community development
, the authors analyzed
community perceptions in two protected areas in Tanzania and
Ghana to identify which initiatives have succeeded and which
are failing. Through surveys, they found that the authorities
have not established protection mechanisms to improve the
livelihoods of their people. In addition, many respondents felt
that the prohibition of activities such as hunting or the sale of
protected species affects them because it is their only source of
income and livelihood (Abukari and Bededict, 2020). In Africa,
extreme poverty has not been solved by the government.
Sources of employment must be created to prevent further
commercialisation of local flora and fauna. If the authorities do
not address social needs, any conservation strategy will fail.
For there to be a commitment on the part of citizens, it
is necessary to create norms; promote environmental education;
promote ecocentric values; include the local community in
the decision-making process of protected areas; take social
demands as a priority and promote equity in the distribution
of resources. This is the only way to achieve true protection
of biodiversity and the local communities that inhabit these
territories.
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5. CASE STUDY: THE GALAPAGOS MARINE RESERVE AND
NATIONAL PARK
The Galapagos Islands have an incalculable wealth of
animal and plant species of worldwide importance. To conserve
this area, a special legal regime was established. The Governing
Council of the Special Regime of the Galapagos is the most
important entity for the administration of the province in all
areas. The Galapagos National Park is the body responsible
for the management of the two protected areas (LOREG,
2015, art. 20). The positive aspects of the Organic Law on the
Special Regime of the Province of Galapagos are as follows: the
regulations incorporate fundamental environmental principles
such as precaution. These principles have constitutional status.
In addition, environmentally damaging activities such as large-
scale fishing and extractive activities have been restricted.
The only permitted activity is artisanal fishing (LOREG, 2015,
art. 58). On the other hand, administrative, civil, and criminal
sanctions are foreseen for causing damage in this province.
Depending on the seriousness of the offence or infraction this
will be known by the competent bodies.
In developing national regulations, the authorities
have been guided by some of the IUCN guidelines such as:
incorporating environmental principles into the constitution;
establishing rights and obligations of the authorities in charge
and limiting harmful activities for conservation reasons.
Another important issue is to study the management
plans. The Galapagos Protected Areas Management Plan for
Good Living is the tool used for the administration of the
Galapagos National Park and Marine Reserve. The IUCN
recommends a plan for each protected area; however, an effort
has been made to incorporate all the parameters issued by
this international organisation through the development of an
integrated plan. In theory, a logical order is followed: first, a
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contextualisation of the province is made, and the purpose of
the plan is established. Second, it mentions the threats to the
biophysical component. Third, it sets out six objectives and
actions to achieve them (Pan de Manejo de Áreas Protegidas de
las Galápagos para el Buen Vivir, 2014).
The plan is a comprehensive document and international
recommendations have been followed. However, the lack of
budget has impeded achieving all the goals proposed in this
planning instrument. Another problem is that the technological
tools have not been acquired by the authorities. The evaluation
of the management of protected areas would have to be stored
in Big Data tools to facilitate the elaboration and interpretation
of data. Currently, everything is done manually.
Regulations on the islands are strict and the Management
Plan for the Protected Areas of the Galapagos Islands for Good
Living (2014) was developed under the guidelines issued by
the IUCN. Despite this, the incidence of environmental crime
has not decreased for various reasons: lack of commitment
from the competent authorities, legal loopholes, lack of
budget, etc. For example, there is negligence on the part of the
Galapagos authorities who have failed to prevent illegal fishing
by international vessels on the high seas. In the Ecuadorian
newspaper El Universo, the following is mentioned: In 2020
some two hundred and sixty Chinese vessels caught protected
marine species near the Galapagos reserve without any kind of
control. This is recurrent and the authorities have not defined
strategies to achieve international agreements to regulate fishing
on the high seas (2021). Greater control of these protected
areas is required so that the regulations do not remain mere
statements but can be applied.
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CONCLUSIONS
The creation of protected areas is a relevant issue
due to the alarming decline of biodiversity in all parts of the
world. Radical changes in climate, melting of glaciers, the
transformation of ecosystems, disappearance of species, etc.
are phenomena that are directly related to environmental
damage. Man’s survival depends on the health of planet earth.
The official website of the confederation Ecologistas en Acción
de España (2006) stresses the following:
Biodiversity loss has negative effects on several
aspects of human well-being, such as food security,
vulnerability to natural disasters, energy security, and
access to clean water and raw materials. It also affects
human health, social relations, and freedom of choice.
(Para. 2)
Biodiversity provides a multiplicity of services to
humans. These areas can be protected by law. Environmental
precepts are not only aimed at protecting the environment
but also human beings. Regulations for the management of
protected areas must be developed in strict accordance with the
international guidelines of the IUCN if biodiversity conservation
is to be viable. The Guidelines for Protected Area Legislation
prioritise the inclusion of certain management principles such
as system-level planning in any legislation. It also mentions
the importance of including environmental principles such as
prevention in State constitutions.
Global environmental conventions such as the
Convention on Biological Diversity are successful instruments
for the conservation of these areas. One of the obligations
arising from this Convention is the duty of States to establish
protected areas and to establish actions to achieve the proposed
goals. To be able to demand compliance with these national and
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international regulations, the precepts must be clear, obligatory,
and enforceable.
From the case study of the protected areas in the
Galapagos, it can be concluded that the regulations have
legal gaps, and the integrated management plan has in theory
been correctly designed based on the IUCN Guidelines.
Unfortunately, in practice, it has been impossible to fully
protect these areas. This is because the legal precepts are often
unenforceable and do not have the support of society. For this
reason, the rules must be clear so that they are respected by
all. The objectives included in management plans cannot be
utopian or difficult to achieve. Similarly, the authorities have an
irreplaceable role to play in generating effective surveillance,
control, and monitoring mechanisms for protected areas.
The Guidelines for Protected Areas Legislation
helps states create effective regulations and fill legal gaps
on these issues. It is an indispensable tool that, although not
binding, provides the most recent parameters to optimise
States’ protected area legislation. IUCN’s recommendations
are followed by States because it is a relevant institution with
professionals who contribute their knowledge to improve
nature conservation in all parts of the world.
IUCN guidelines are referred to in international
environmental treaties because of their relevance. States,
therefore, need to ensure that their protected areas are backed
by enforceable policy precepts using the most advanced
technological tools to ensure change and prevent further
damage to nature. This is the only way to ensure that humans
and all species on planet earth can live together in harmony.
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Received:
25/06/2021
Accepted:
25/05/2022
Johana Liseth Robles Arias
Independent legal researcher
Email:
johanarobles_1720@hotmail.com
City:
Quito
Country:
Ecuador
ORCID:
https://orcid.org/0000-0002-3070-2156