Biodiversity law and regulation
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The Global South has led the way in adopting the human right to a healthy environment
[fig. 7]
Countries that recognise the right to a healthy environment in their constitutions
Source: BBC
National laws
At the European Union level 158 biodiversity protections are enshrined in the Birds Directive 159 , the Habitats Directive 160 , the Regulation on Invasive Alien Species 161 , Zoos Directive 162 , the Leghold Traps Regulation 163 , Trade in Seal Products Regulation 164 and the Seal Pups Directive. 165 In some cases, protection for nature is couched in the language of human rights. More than 100 constitutions across the world have adopted a human right to a healthy environment 166 and in October 2021, the UN Human Rights Council recognised on a global scale that having a clean, healthy and sustainable environment is a human right. 167 158 Nature and biodiversity law, European Commission. 159 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, November 2009. 160 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, May 1992. 161 Regulation 1143/2014 of the European Parliament and of the Council of 22 October 2014 on the prevention and management of the introduction and spread of invasive alien species, October 2014. 162 Council Directive 1999/22/EC of 29 March 1999 on the keeping of wild animals in zoos, March 1999. 163 Council Regulation 3254/91 of 4 November 1991 prohibiting the use of leghold traps in the Community and the introduction into the Community of pelts and manufactured goods of certain wild animal species originating in countries which catch them by means of leghold traps or trapping methods which do not meet international humane trapping standards, November 1991. 164 Regulation 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products, September 2009. 165 Council Directive 83/129/EEC of 28 March 1983 concerning the importation into Member States of skins of certain seal pups and products derived there- from, March 1983. 166 Katarina Zimmer, The human right that benefits nature, BBC News, 17 March 2021. 167 Access to a healthy environment, declared a human right by UN rights coun- cil, UN News, 8 October 2021.
Biodiversity is protected at the national level through a diverse framework of law and regulation. Some countries have enshrined biodiversity protection in their constitutions. For example, Article 66 of Portugal’s Constitution states “Everyone shall possess the right to a healthy and ecologically balanced human living environment and the duty to defend it.” 149 The Constitution of Bhutan provides for a minimum of 60% of the country’s land to be under forest cover for all time and emphasises that it is the fundamental duty of the Government and the people to safeguard the biodiversity of the country. 150 In February 2022, Italy passed a constitutional amendment that mandates the state to safeguard the environment, biodiversity and natural ecosystems “in the interest of future generations”. 151 Other countries have a robust environmental protection framework. For example, the Indian Wildlife Protection Act of 1972 provides for the protection of the country’s wild animals, birds, and plant species, in order to ensure environmental and ecological security, 152 while its Environment (Protection) Act 1986 was adopted to ensure protection and improvement of the environment. 153 South Africa’s 2004 Biodiversity Act requires that the state “manage, conserve and sustain South Africa’s biodiversity and its components and genetic resources”. 154 149 Portugal’s Constitution of 1976 with Amendments through 2005. 150 Balakrishna Pispupati et al., Law and National Biodiversity Strategies and Action Plans, United Nations Environment, 2018. 151 Olivia Lai, Italy makes protecting the environment part of its constitution, Earth Org, 10 February 2022. 152 The IndianWildlife Protection Act, 1972. 153 The Environmental (Protection) Act, 1986. 154 National Environmental Management: Biodiversity Act, 2004.
In the US at the federal level, Congress has enacted a number of environmental statutes since 1969 to minimise pollution and environmental impacts. 155 Key legislation includes the Endangered Species Act 1973, Marine Mammal Protection Act 1972, Wild Bird Conservation Act 1992, several Multinational Species Conservation Acts, Lacey Act, Pelly Amendment and Migratory Bird Treaty Act 1918. 156 States and local governments, unless prohibited to do so by a federal statute, may adopt more stringent laws and regulations. In the UK, biodiversity protections are embedded in a range of legal instruments including the Environment Act 2021 and the regulations which will make its provisions operative, the Natural Environment and Rural Communities Act 2006, the National Planning Policy Framework (NPPF), the Conservation of Habitats and Species Regulations 2010, and the Wildlife and Countryside Act 1981 (as amended). 157
“The Human Rights Council’s decisive action in recognising the human right to a clean, healthy and sustainable environment is about protecting people and planet – the air we breathe, the water we drink, the food we eat. It is also about protecting the natural systems which are basic preconditions to the lives and livelihoods of all people, wherever they live”
UN High Commissioner for Human Rights, Michelle Bachelet 168
The new biodiversity frameworks
There are legislative initiatives in progress to harmonise and strengthen biodiversity law through broad protection and restoration goals. For example, the UK’s Environment Act 2021 creates legally binding targets for species abundance for 2030 (to reverse declines of iconic British species like the hedgehog, red squirrel and water vole 169 ) and aims to halt the decline of nature by 2030.
155 Paul Tanaka et al., Environmental law and practice in the United States: overview, Practical Law, May 2021. 156 U.S. Conservation Laws, US Fish &Wildlife Service. 157 2010 to 2015 government policy: biodiversity and ecosystems, DEFRA, May 2015.
168 Bachelet hails landmark recognition that having a healthy environment is a human right, United Nations Office of the High Commissioner of Human Rights, 8 October 2021. 169 World-leading Environment Act becomes law, DEFRA, 10 November 2021.
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