How migratory elephants push boundaries in international environmental law

An elephant on the border

As an elephant, Tlou rarely queues at border posts and doesn’t carry a passport when he travels. In fact, he strolls across borders without even taking note of them as he has never heard about the concept of clearly delineated nation states. This would be fine, was it not for another mammal species that is, in sharp contrast, highly concerned about borders and the exploitable resources within them – including Tlou and his kind. Now imagine the grey gentleman wandering around under the burning Southern African sun, plucking a tuskful of grass every here and there and finally enjoying a nap in the pleasant shade of his favourite tree on the banks of the Okavango River – precisely on the border between Botswana and Namibia. Where does Tlou belong in this moment in which trunk and tail wag in different countries? And, to be fair, does it actually matter?

For Botswana and Namibia it certainly does. Botswana harbours the largest remaining elephant population on the African continent, making it the save-haven in times of drastic population decline due to habitat loss and illegal killing. Roaming Botswana’s world-famous Okavango Delta, Tlou and his pals enjoy a relatively peaceful life: in 2004, the country’s President banned trophy hunting in a sensational move – controversial as it was long considered a main pillar conservation finance. Elephant hunters, mostly from overseas and willing to pay tremendous sums, now fall back on Namibia. For Botswana’s neighbouring country, ‘conservation hunting’ is still an essential source of income in support of its decentralized concept of Community-Based Nature Conservation. This has potential for conflict: what if an elephant, duly protected by Botswana’s wildlife policy for all his life, steps over the border and gets shot in a Namibian trophy hunt?

International environmental law mitigates transboundary conflicts. It emerged back in the days of industrialization when toxic factory fumes cared as little about borders as Tlou does today. The transboundary impact of state conduct had to be traded-off against the fundamental legal principle of state sovereignty, i.e. the right of states to behave on their territory as they wish. What does that mean for Tlou? While he enjoys his nap on the border, he technically falls under the sovereignty of two different states at the same time. This doesn’t really make sense and hence contemporary international environmental law cuts back on such state sovereignty – as the rest of this piece will explore.

International conservation treaties

Without him having the faintest idea, Tlou’s fate is subject of four major international conservation treaties. The 1971 Ramsar Convention originally aimed at conserving wetlands around the globe as waterfowl habitat. More recently, the convention encouraged member states to also consider terrestrial animals. Botswana and Namibia have declared Ramsar-Sites in the Okavango Delta (see map) and explicitly mention African Elephants as integral part of them. If wetlands stretch across borders, the Ramsar Convention urges member states to perceive such ecosystems as a whole – including napping pachyderms – and to cooperate in their management.

Figure 1: Excerpt of the Kavango-Zambezi Transfrontier Conservation Area including Ramsar Sites and World Heritage Sites on the territories of Botswana and Namibia. Own compilation based on Ramsar Convention Secretariat and UNESCO World Heritage Centre.

Excerpt of the Kavango-Zambezi Transfrontier Conservation Area including Ramsar Sites and World Heritage Sites on the territories of Botswana and Namibia. Own compilation based on Ramsar Convention Secretariat and UNESCO World Heritage Centre.

Shortly after Ramsar and with a similar approach, the World Heritage Convention entered into force. Member states can declare areas that are worthy of protection ‘natural heritage sites’. The Okavango Delta on the territory of Botswana is such a site (see map) and Tlou and his kind are mentioned as integral part of it. Article 6 of the Convention obliges its member states to cooperate in the management of sites – even if the sites are not transboundary.

While Tlou enjoys the peaceful tranquillity of Botswana, many of his conspecifics elsewhere were less fortunate. Their ivory now decorates mantelpieces around the world. As a result, the 1975 CITES Convention regulates wildlife trade. It only allows Botswana, Namibia, South Africa and Zimbabwe to trade limited amounts of ivory because they harbour the relatively healthy Southern African subpopulation of elephants. The fact that CITES distinguishes at this aggregated population level – and not at state level – hints once more at perceiving populations holistically as transnational units.

The above mentioned treaties relate explicitly to Tlou’s outings across the border. They all tend to perceive transboundary populations as transnational units. This trend is reinforced by the 1992 Convention on Biological Diversity. It formally establishes the ‘ecosystem approach’ which requires member states to manage biodiversity and transboundary ecosystems jointly.

In sum, global conservation treaties lay the foundations for an internationalization of transboundary natural resources. However, their abstract character provides little guidance for practice on the ground. As the next paragraph shows, regional conservation treaties attempt to fill this gap.

Regional conservation treaties

Botswana and Namibia are both members of the Southern African Development Community (SADC). SADC’s 2003 Protocol on Wildlife Conservation and Law Enforcement takes the above mentioned trend of internationalization to a regional level: it explicitly obliges member states to collectively manage ‘shared wildlife resources’.

Most specifically relating to Tlou is the Treaty on the Establishment of the Kavango Zambezi Transfrontier Conservation Area (‘KAZA TFCA’) signed in 2011 by Angola, Botswana, Namibia, Zambia and Zimbabwe. The TFCA includes the Okavango Delta and all of the mentioned sites (Fig. 1). Its primary purpose is to harmonize ‘policies, strategies and practices for managing shared Natural Resources that straddle the international borders of the five (5) Partner States’. The treaty further interprets the member states’ sovereignty as closely tied to a shared responsibility for those parts of the KAZA-ecosystem that fall under their jurisdiction. Finally, and progressively, the treaty declares the KAZA TFCA an international organisation with own legal personality. This constitutes a supranational character and hence a clear step towards the internationalization of wildlife.

An elephant – not yet beyond borders

OLYMPUS DIGITAL CAMERATlou just woke up from his nap on the border. In the cooler evening hours he will continue his journey in one of the two countries. Seen through the lens of international environmental law, it shouldn’t really matter which path he chooses. The conventions and treaties mentioned above oblige Botswana and Namibia to consequently develop joint approaches to manage their shared wildlife resources. Reality, however, is different: turning either left or right, choosing either the safe haven or the hunting grounds, could eventually turn into a matter of life and death for Tlou.

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