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Guidelines for Protected Areas Legislation Guidelines for Protected Areas Legislation Barbara Lausche Françoise Burhenne Author Project Director IUCN Environmental Law Programme Environmental Law Centre Godesberger Allee 108-112 53175 Bonn, Germany Phone: ++ 49 228 / 2692 231 Fax: ++ 49 228 / 2692 250 IUCN Environmental Policy and Law Paper No. 81 [email protected] www.iucn.org/law IUCN_EPLP_81_ENGRZ_15mm.indd 1 09.05.2011 13:25:33 Uhr Guidelines for Protected Areas Legislation Guidelines for Protected Areas Legislation Barbara Lausche Françoise Burhenne Author Project Director IUCN Environmental Policy and Law Paper No. 81 The designation of geographical entities in this book, and the presentation of the material, do not imply the expression of any opinion whatsoever on the part of IUCN concerning the legal status of any country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. The views expressed in this publication do not necessarily reflect those of IUCN. Published by: IUCN, Gland, Switzerland in collaboration with the IUCN Environmental Law Centre, Bonn, Germany Copyright: © 2011 International Union for Conservation of Nature and Natural Resources Reproduction of this publication for educational or other non-commercial purposes is authorized without prior written permission from the copyright holder provided the source is fully acknowledged. Reproduction of this publication for resale or other commercial purposes is prohibited without prior written permission of the copyright holder. Citation: Lausche, Barbara. (2011). Guidelines for Protected Areas Legislation. IUCN, Gland, Switzerland. xxvi + 370 pp. ISBN: 978-2-8317-1245-1 978-2-8317-1283-3 (CD-ROM En) 978-2-8317-1362-5 (CD-ROM En, Fr, Es) Edited by: Firuza Pastakia Cover design by: IUCN Environmental Law Centre Cover photos: IUCN Photo Library © Evelyne Clarke, © Cynthia Craker, © Imène Meliane, © Jim Thorsell; IUCN Photo Library © IUCN / Peter Shadie, © IUCN / David Sheppard Layout by: medienwerkstatt hoppe, Sinzig, Germany Produced by: IUCN Environmental Law Centre Printed by: in puncto druck + medien gmbh, Bonn, Germany Available from: IUCN Publications Services Rue Mauverney 28 1196 Gland Switzerland Tel +41 22 999 0000 Fax +41 22 999 0020 [email protected] www.iucn.org/publications A catalogue of IUCN publications is also available. Contents Contents Foreword xv Preface and acknowledgements xvii Acronyms and abbreviations xxv Introduction to the guidelines 1 A The setting 1 B Purpose and audience 3 C Scope 4 D Sources of information and guidance 5 E Generic terms 7 F Organization 8 G Looking ahead 9 Part I: Basic principles and obligations 11 Introduction 11 1 Protected areas defined 11 1.1 IUCN definition 11 1.2 Guiding principles 14 1.3 Special applications 14 1.4 Protected areas and sustainable development 16 2 Perpetual integrity 17 3 Management principles with legal application 19 3.1 System planning 19 3.1.1 Protected areas system plan 21 3.1.2 Ecosystem approach 22 3.1.3 Buffer zones and connectivity conservation 23 3.2 Management by conservation objectives 25 3.2.1 Protected area management categories 25 3.3 Management plans 29 3.3.1 Key management plan elements for legislation 30 3.3.2 Adaptive management 32 3.4 Precautionary approach 33 3.5 Managing for invasive alien species 34 3.6 Managing for climate change 37 3.7 Taking an international perspective 39 4 Governance principles in decision making 40 4.1 Good governance 40 4.2 Aarhus Convention 43 4.3 Access to information 44 4.4 Public participation 45 4.5 Social equity and justice 46 v IUCN-EPLP No. 81 Contents 5 Multilateral and supranational legal obligations 47 5.1 Major global conventions 48 5.1.1 Convention on Biological Diversity 48 5.1.2 Convention Concerning the Protection of the World Cultural and Natural Heritage 50 5.1.3 Convention on Wetlands of International Importance especially as Waterfowl Habitat 54 5.1.4 Convention on the Conservation of Migratory Species of Wild Animals 56 5.2 Regional instruments 60 5.2.1 Africa: African Convention on the Conservation of Nature and Natural Resources (revised) 60 5.2.2 Europe: Convention on the Conservation of European Wildlife and Natural Habitats 61 5.2.3 The Americas: Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere 63 5.3 European Union: Habitats and Birds Directives (Natura 2000 Network) 64 6 UNESCO Man and the Biosphere Programme 65 7 International policy and guidance 67 7.1 Stockholm Declaration and Principles 68 7.2 World Charter for Nature 68 7.3 World Commission on Environment and Development 69 7.4 United Nations Conference on Environment and Development: Rio Declaration and Agenda 21 70 7.5 Earth Charter 70 7.6 World Summit on Sustainable Development 71 7.7 Sustainable forest management 72 7.8 Sustainable fisheries management 73 Part II: Governance approaches 75 Introduction 75 1 Context 75 2 New policy directions 77 3 Governance approaches 77 3.1 Governance by government 79 3.2 Voluntarily conserved areas: new governance approaches 80 3.2.1 Governance by indigenous and local communities 81 3.2.2 Private governance 85 3.3 Co-managed or shared governance 89 3.4 Governance as a continuum of options 90 3.5 Flexibility with new governance approaches 92 4 Supportive international law and policy 92 4.1 Convention on Biological Diversity 93 4.2 World Heritage Operational Guidelines 93 4.3 Ramsar Guidelines 93 4.4 International Labour Organization Convention 169 94 4.5 United Nations Declaration on the Rights of Indigenous Peoples 95 IUCN-EPLP No. 81 vi Contents 5 Special legal considerations for new governance approaches 95 5.1 Protected area management categories 95 5.2 Good governance principles 96 5.3 Tenure and governance 99 5.4 Agreements with the government 100 6 Other legal tools supporting voluntary conservation 102 6.1 Easements and covenants attached to the land 102 6.2 Land trusts 103 Part III, Chapter 1: Generic elements of protected areas legislation 107 Introduction 107 1 Pre-drafting preparations 107 2 Preliminary sections of the legislation 111 2.1 Definitions and interpretation 111 2.1.1 General rules 111 2.1.2 International definitions 112 2.2 Application of the law 114 3 Policy and objectives 116 3.1 Supportive national policy 116 3.2 Constitutional principles 116 3.3 Overall objectives 119 3.4 Principles associated with objectives 123 4 Institutional arrangements 124 4.1 General considerations 124 4.2 Nature of authority 125 4.2.1 High policy level 125 4.2.2 Lead protected areas agency 127 4.2.3 Statutory corporations 128 4.2.4 Management authorities for individual sites 129 4.2.5 Functions, duties and powers 130 4.3 Co-management 132 4.4 Advisory bodies 134 4.5 Coordination mechanisms 135 4.6 Special considerations for voluntarily conserved areas 137 5 Planning for protected areas 138 5.1 System plans 138 5.2 Legal status of land or sea 140 5.3 Compatibility with surrounding landscape or seascape 142 5.4 Supportive land use regulation 144 6 Establishment of protected areas 146 6.1 Use of protected area categories 147 6.2 Powers of establishment and recognition 149 6.3 Nomination process for inclusion of new protected areas 150 6.4 Powers and procedures for reduction or declassification 152 6.5 Demarcation of boundaries and zones 154 6.6 Interim protection 156 6.7 Compensation 157 vii IUCN-EPLP No. 81 Contents 6.8 Special considerations for biosphere reserves 159 6.9 General considerations for voluntarily conserved areas 160 7 Protected areas management 162 7.1 Site management plans 163 7.2 Zoning within a protected area 167 7.3 Buffer zones and connectivity conservation areas 167 7.4 Special considerations for voluntarily conserved areas 170 8 Conservation agreements 172 9 Regulated activities 174 9.1 General principles 175 9.2 Prohibited activities 177 9.3 Activities requiring written permission 178 9.4 Activities allowed by general rules without written permission 180 9.5 Regulating category V and VI areas 182 9.6 Recreational activities 184 9.7 Emergency and incident management 185 10 Compliance and enforcement 186 10.1 Achieving compliance 186 10.2 Authorized officers 188 10.3 Powers and duties of authorized officers 190 10.3.1 Police powers 191 10.3.2 Other powers 191 10.3.3 Combining extension with enforcement 192 10.4 Offences and penalties 193 10.4.1 Criminal penalties 193 10.4.2 Civil penalties 195 10.4.3 Burden of proof 197 10.4.4 Legal proceedings 200 10.4.5 Administrative appeals 201 11 Environmental and social impact assessment 201 12 Special financial tools 203 13 Miscellaneous 206 13.1 Enabling provisions 206 13.2 Transitional provisions, repeal and revision 207 14 Schedules 207 Part III, Chapter 2: Special issues for marine protected areas 209 Introduction 209 1 Historical perspective 210 2 Marine features requiring special attention 211 2.1 Special characteristics 212 2.2 Special threats 218 2.3 Special management challenges 219 3 MPA-specific international obligations and principles 222 3.1 International oceans law 223 3.1.1 United National Convention on the Law of the Sea 223 3.1.2 International Maritime Organization rules and conventions 228 IUCN-EPLP No. 81 viii Contents 3.2 International conservation treaties 231 3.2.1 Convention on Biological Diversity 231 3.2.2 Ramsar Convention 233 3.2.3 World Heritage Convention Marine Programme 234 3.3 Regional agreements 235 3.3.1 Regional Seas 235 3.3.2 OSPAR Convention 239 3.3.3 Helsinki Convention and OSPAR Convention 240 3.3.4 ACCOBAMS 241 3.3.5 Natura 2000
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