Uncertainty, Precaution, and Adaptive Management in Wildlife Trade

Wildlife trade is big business. Legal international trade in just some of the wild animals and plants traded worldwide is estimated at $350 to$530 million per year. The United States is the primary importer of virtually every major taxon of these species, including mammals, reptiles, fish, and plants. When it comes to illegal trade, estimates of its value range from $7 to$23 billion annually, covering wild animals, fish, and timber. This illegal trade fuels organized crime and militia and terrorist groups. In the face of all this pressure, some wild species appear to be traded in sustainable amounts. Others are headed for extinction. In this high-stakes world, both uncertainty and value conflicts abound. With scientific and socioeconomic uncertainty, data, inferences, and predictions can all be contested. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) manages international trade in wild at-risk species and their parts through a combination of international decision-making and national and sub-national implementation, banning and regulating trade in species with the goal of avoiding extinction due to international trade. Every decision taken by CITES parties—whether on the floor of the regular meetings or by Scientific Authorities designated by the state—has to deal with uncertainty due to data gaps, the effect of human activity, and complexity, among other things. This Article addresses how the parties to CITES have dealt with uncertainty by analyzing their approach to precaution and adaptive management. The Article concludes that the parties have shied away from adopting the precautionary principle or approach and have instead incorporated any precautionary elements into monitoring and adaptive management. This way of implementing precaution emphasizes uncertainty arising from data gaps. However, uncertainty also arises from complexity and indeterminacy, and cannot always be resolved by more data. Thus, uncertainty is not always temporary. For the parties to ensure that international trade does not result in species extinction, they need to be informed by science and aware of its limitations. Incorporating precaution within adaptive management is therefore necessary for decision-making on wildlife trade, but it is not sufficient. The Article argues that fully acknowledging the range of sources of uncertainty requires both a first role for precaution within adaptive management approaches—as the parties are doing, albeit less explicitly—and a second role for precaution at the point of final decision-making

Climate Change, Forests, and International Law: REDD\u27s Descent into Irrelevance

Forestry activities account for over 17 percent of human-caused greenhouse gas emissions. Since 2005, parties to the United Nations Framework Convention on Climate Change have been negotiating a mechanism known as REDD--Reducing Emissions from Deforestation and Degradation--to provide an incentive for developing countries to reduce carbon emissions and limit deforestation at the same time. When REDD was first proposed, many commentators argued this mechanism would not only mitigate climate change but also provide biodiversity and forests with the hard international law regime that had so far been missing. These commentators appeared to hope REDD would develop into this kind of hard international law regime. Their hope is unlikely to be fulfilled. This Article focuses on two aspects of REDD negotiations between 2005 and 2012--the changing scope of the REDD mechanism and the parties\u27 decisions about the level of international oversight--and situates these developments within an overall international legal framework. Placing the negotiations in the context of REDD\u27s international legal framework exposes their significance. The true story of REDD demonstrates that REDD is developing into a country-driven, voluntary mechanism with limited international oversight and with a scope that makes it extremely difficult to implement. In that sense, REDD has far more in common with the international legal regime that currently governs forests and biodiversity than with the hard law of the international legal regime that governs climate change. This Article concludes by pointing out two problems that result from not paying attention to the overall effect of the REDD negotiations. The first problem is misdirected focus. If the international community does not pay attention to the real story of REDD, it is likely to focus its energies on design questions at the international level and miss critically important aspects of REDD\u27s implementation at the national and subnational level involving both private and public initiatives. The second problem is misdirected accountability. REDD\u27s current scope makes it extremely difficult to administer and maintains an institutional infrastructure that lacks standardized and supranational oversight. Mechanisms for accountability for REDD\u27s success or failure are lacking. Many commentators have warned that the biggest threat to climate change mitigation and biodiversity would be failure to implement REDD. This Article counters that the biggest threat to climate change mitigation and biodiversity is for REDD to go forward as it is currently being negotiated. If the international community does not pay attention to the real story of REDD, it will likely become nothing more than a cover for limited emissions reduction, weak forest protection, infringement of indigenous and local peoples\u27 rights, and harm to biodiversity

The New International Law-Makers? Conferences of the Parties to Multilateral Environmental Agreements

This Article adds to a nascent and still limited awareness that something important is afoot in international law: the activity of Conferences of the Parties (COPs) to multilateral environmental agreements (MEAs). Some of this activity-such as formal amendments to a treaty or protocol- requires a state party\u27s consent before it will be binding on that state. This activity fits easily within traditional categories of the sources of international law and gives rise to new obligations for states that are identifiable as hard law. However, other activity by COPs does not require the consent of every state party to the treaty in order to come into effect and does not provide for any form of opt-out for dissenting states; it is agreed on by consensus or, failing consensus, some form of majority vote. I term this consensus-based COP activity

Uncertainty, Precaution, and Adaptive Management in Wildlife Trade

Wildlife trade is big business. Legal international trade in just some of the wild animals and plants traded worldwide is estimated at $350 to$530 million per year. The United States is the primary importer of virtually every major taxon of these species, including mammals, reptiles, fish, and plants. When it comes to illegal trade, estimates of its value range from $7 to$23 billion annually, covering wild animals, fish, and timber. This illegal trade fuels organized crime and militia and terrorist groups. In the face of all this pressure, some wild species appear to be traded in sustainable amounts. Others are headed for extinction. In this high-stakes world, both uncertainty and value conflicts abound. With scientific and socioeconomic uncertainty, data, inferences, and predictions can all be contested. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) manages international trade in wild at-risk species and their parts through a combination of international decision-making and national and sub-national implementation, banning and regulating trade in species with the goal of avoiding extinction due to international trade. Every decision taken by CITES parties—whether on the floor of the regular meetings or by Scientific Authorities designated by the state—has to deal with uncertainty due to data gaps, the effect of human activity, and complexity, among other things. This Article addresses how the parties to CITES have dealt with uncertainty by analyzing their approach to precaution and adaptive management. The Article concludes that the parties have shied away from adopting the precautionary principle or approach and have instead incorporated any precautionary elements into monitoring and adaptive management. This way of implementing precaution emphasizes uncertainty arising from data gaps. However, uncertainty also arises from complexity and indeterminacy, and cannot always be resolved by more data. Thus, uncertainty is not always temporary. For the parties to ensure that international trade does not result in species extinction, they need to be informed by science and aware of its limitations. Incorporating precaution within adaptive management is therefore necessary for decision-making on wildlife trade, but it is not sufficient. The Article argues that fully acknowledging the range of sources of uncertainty requires both a first role for precaution within adaptive management approaches—as the parties are doing, albeit less explicitly—and a second role for precaution at the point of final decision-making