Introductory Remarks by Marcos Orellana
Orellana, Marcos, Proceedings of the Annual Meeting-American Society of International Law
Today we will discuss a topic of increasing international relevance that has been largely outside the radar of international environmental law, namely transnational conservation contracts.
Loosely defined, transnational conservation contracts include any negotiated and enforceable agreement addressing environmental conservation issues. They were created in order to address the gaps between traditional command and control regulation and purely voluntary initiatives. These types of agreements can involve two or more parties and several actors, including nongovernmental organizations, states, individual companies, regulators, community groups, and indigenous peoples. At times, conservation agreements have been made between an entire industry and one of these groups.
Conservation contracts can cover a wide variety of issues that may arise throughout the course of a project. Their terms usually address issues such as (1) conservation obligations; (2) institutional arrangements; (3) monitoring and reporting; and (4) security deposits to guarantee restoration obligations.
As we will learn from our speakers today, conservation contracts have been applied in several areas, including:
* mining & benefit-sharing;
* reducing emissions from deforestation and forest degradation (REDD+);
* biodiversity conservation; and
* natural resource management, including fisheries.
Each of these diverse areas presents its particular set of issues in connection with conservation contracts.
While transnational conservation contracts may help fill gaps in regulatory schemes and promote a consensual approach to management of natural resources and environmental protection, several concerns have been raised in relation to these types of contracts, including the following:
* Equity issues relating to power imbalances. Equity issues have been raised where contracts are negotiated and concluded between parties having very different resources and capacities, such as a conservation contract involving a mining company and a local community.
* Transparency. At times, conservation agreements are either confidential, or access to them is restricted. The lack of access to certain agreements has made it difficult to review potential social or environmental concerns that may arise in their negotiation or implementation, including with respect to the distribution of benefits from the contract. …