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Edited by Ed Couzens, Alexander Paterson, Sophie Riley and Yanti Fristikawati

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Yilin Pei

This chapter concerns the relationship/s between local communities and nature and forest reserves – and how the interests of both can be taken into account in sustainable management and protection of biological diversity. Initially, the importance of forest biodiversity and the issue of human and wildlife relationships are explained; then the general history of the creation and protection of forest reserves, and nature reserves more generally, in China is canvassed. It is explained that inadequacies present in legal instruments have led to conflict between humans and wildlife and tension between different interests. Forest nature reserves in China face many of the problems faced by forest reserves worldwide, such as illegal logging, ongoing pressure to open them for resource use, and low regulatory compliance by local communities. Different management options, and different legislative and funding options, are explored for possible reform. It is concluded that conservation of forest biodiversity should be envisaged in a long-term perspective, where building positive and cooperative relationships between local communities and protected area management, linking conservation to socio-economic aspects, orienting management towards conservation objectives, considering land rights and welcoming stakeholder participation may all help to achieve sustainable development. Reflections from China’s experience can be applied to other countries facing similar realities.

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Marcia Fajardo Cavalcanti de Albuquerque

This chapter considers the uneasy relationship between the protection of biological diversity and the promotion of agriculture. The history of agriculture in Brazil is considered, with problems that have been caused by agriculture. Legislative control has increased but has not proved adequate and biodiversity has continued to decline. The thrust of the chapter is to suggest ways in which a new approach could be taken – an integrated management approach that introduces the concept of ‘agroforestry’ and balances biodiversity protection with agricultural practices. The chapter commences by first considering the form, nature and importance of agroforestry, the recognition accorded to it in key international conventions, and elements found in legal and policy frameworks providing for its effective domestic implementation. The legal and policy elements that have underpinned successful agroforestry regimes are considered, and then it is demonstrated that agricultural production and biodiversity conservation can be allies through the adoption of agroforestry practices. Possible obstacles to implementation are considered and then, in light of this context, the Brazilian legal framework is critically evaluated with a view to determining whether it provides a workable regime for promoting agroforestry.

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Trevor Daya-Winterbottom

The chapter explains that most, if not all, countries are struggling to halt the decline of indigenous biodiversity, and New Zealand is one such. One problem is that, notwithstanding baseline state of the environment reporting since 1997, there has been political resistance to preparing national policy statements regarding indigenous biodiversity to assist with interpreting the law, and attempts to implement modern up-to-date legislation have stalled since 2002. This chapter focuses on a certain coastal marine area, and the largest global submarine forest of black coral trees found in that area, as a mechanism for evaluating the effectiveness of New Zealand’s marine protection laws. Generally, an empirical approach is used to interrogate what environmental practice would look like if carried out in a sustainable way, what government entities and the private sector are doing to foster sustainable outcomes, and what should be done to promote sustainability. The overall argument made in the chapter is that different evaluation approaches (constitutional, empirical and governance) are useful in exposing any gaps between policy and practice within the legal system. It is finally concluded that applying a variety of evaluation approaches is useful in exposing the nature and extent of any implementation gaps, and that in pragmatically driven common law systems there is evidence that anticipated environmental outcomes are not always driven by the law.

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Amber Prasad Pant

The chapter analyses recent policies and legal frameworks dealing with climate change and sustainable forest management in Nepal and draws the conclusion that climate change is increasing, and having serious impacts, at all of the global, regional and national levels. The health and vitality of forest ecosystems are adversely affected by climatic as well as land use changes. The role of forest management, and the legal control thereof, in adapting to and mitigating the impact of climate change has become a global concern. Nepal has a climate change policy and has taken various legislative steps. The various national legislative and policy instruments relevant to climate change in Nepal are canvassed; and then Nepal’s position within various international fora is considered. While Nepal’s own greenhouse gas emissions are negligible, the country faces significant problems with the effects on its forests from emissions from developed countries and its large neighbours China and India. Finally, suggestions are made as to future reform.

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Carina Costa de Oliveira and Sandrine Maljean-Dubois

‘Global public goods’, ‘common heritage’ and the ‘global commons’ are concepts used to describe elements of the political and legal regime concerning marine resources. In this chapter it is explained, however, that these concepts are limited when it comes to determining the obligations of states and of international organizations regarding marine resources conservation. The question of whether a duty of cooperation to protect the marine environment exists or not is considered; and limitations on the different concepts are discussed. It is then averred that – even if the intrinsic purpose of the concepts discussed can be questioned – these concepts currently dominate the debate on marine resources. Their existence, whether scientifically useful or not, can therefore not be denied or ignored. It is argued that, to understand what they can concretely offer to the legal discussions on marine resources, these concepts must be articulated with the more precise legal obligations such as the ‘obligation to cooperate’ and the ‘duty of due diligence’, as applied to marine resources. Accordingly, this chapter concludes by considering how these concepts could be combined and related to more concrete obligations in order to be made more effective.

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Nicholas A. Robinson

The issue raised in this chapter is that of the danger to, and the need for protection of, peat. The chapter considers the vexed issue of preserving the Earth’s peat reserves, which, it is argued, are central to any successful global efforts to cap the rise in Earth’s temperatures to 2 degrees Celsius. The nature and importance of and threats posed to peat stocks are then outlined, highlighting that there are available alternatives for virtually every use of peat, that there is no way effectively to use peat ‘sustainably’, and that remaining peat should accordingly be preserved in parks or other protected areas, and left intact underground, wherever it is already buried or will be covered with coastal waters as sea levels rise. The chapter then proceeds to survey the historic role of law in preserving peat, concluding that environmental law still largely ignores peat. This leads to the conclusion that there is a compelling argument for environmental policy-makers to take a fresh look at peat and forge workable legal frameworks to preserve it. With a view to providing necessary future guidance to policy-makers in this regard, the chapter traverses the international legal frameworks of relevance to peat, distils key legal principles underlining any future legal framework governing peat, and finally, through a case study of Indonesia, distils a set of elements that should be considered in drafting new peat legislation, whether by local, national or regional authorities. The experiences of numerous countries are considered, with some intensive case studies being offered. Issues of financing and international cooperation are considered before suggestions are made as to how appropriate national legislation might be framed.

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Bingyu Liu

This chapter considers the relatively recent but large-scale expansion of investment into foreign, especially developing. countries by China. This expansion (if not controlled and sustainably managed) has implications, potentially negative, both for the conservation of forest biodiversity and for the reputation of the enterprises responsible for negative consequences. The rise of the concept of corporate social responsibility is considered. Suggestions are made as to how such investment initiatives might be sustainably managed through requirements that environmental consideration be made a compulsory part of the investment process – and through the strengthening of corporate social responsibility and corporate accountability, and the adoption of socially (and environmentally) responsible business practices. It is concluded that the emergence of multinationals as a political force, the advent of the new international economic order, and growing concerns about the environment and biodiversity currently provide international law with an opportunity to evolve to suit global needs. Finally, it is suggested that, as an important partner and stakeholder in global environmental governance, China could be a central force in adopting resolutions and establishing codes of conduct.

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Violeta S. Radovich

This chapter considers the adverse effects on marine biodiversity from the exploration for, and exploitation of, oil and gas in the marine environment. Reference is made to the Montara and Deepwater Horizon accidents. It is argued that if appropriate environmental law tools are not applied at appropriate stages, then environmental damage will likely ensue, raising issues of liability and reparation for environmental damage. Currently, there is no convention or fund related to civil liability arising from pollution by offshore oil and gas exploration and exploitation. There is also no global international convention devoted to the governance of marine installations. The chapter canvasses the history of the development of draft international legal regimes – and the adoption of various relevant, but non-specific, international legal instruments found in the law of the sea, in maritime law and in general environmental law instruments. The ‘Offshore Protocol’ to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean 1976 (the ‘Barcelona Convention’) is considered as a possible turning point as the first instrument integrally devoted to the subject. In the conclusion the argument is made that the development of a new convention to deal specifically with the exploration for, and exploitation of, marine oil and gas would be valuable.

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Lin Heng Lye and Sallie Chia-Wei Yang

This chapter focuses specifically on one legal response to dealing with conserving species, namely regulating the international trade in endangered species in the face of illegal international trade in wild animal species, and the devastating effects of this on biological diversity. Examples are given of the current situation in Southeast Asia. The chapter considers (in fact, re-examines) the Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 (CITES) and its implementation, with particular focus on Southeast Asia and its regional centre for combating wildlife trade, the ASEAN Wildlife Enforcement Network (ASEAN-WEN). Examples are given of successes and failures. Recognition of illegal wildlife trade as a transnational environmental crime is called for and there is examination of the UN Convention against Transnational Organized Crime 2003 (UNTOC); the UN Convention against Corruption 2003 (UNCAC); the ASEAN Mutual Legal Assistance Treaty on Criminal Matters 2004 (MLAT); International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation 2012 (FATF); and the London Declaration on Wildlife Trade 2014. The chapter finally canvasses various possible solutions, and makes recommendations for more effective policing and enforcement in the context of ASEAN and East Asia.