Transnational Conservation Contracts: A Primer
Affolder, Natasha, Proceedings of the Annual Meeting-American Society of International Law
International lawyers are often skilled in the art of formulating insightful distinctions, adding clarity to international law by perceptively distinguishing legal concepts and norms. A discussion of transnational conservation contracts calls upon a different set of skills--the need for "lumping" together disparate agreements and trends to identify a transnational legal phenomenon that might otherwise get missed. Initiatives to protect global biodiversity are increasingly happening by contract, but the significance of contracting as a collective practice is easy to miss, as contracts are constructed as isolated and one-off occurrences. The highly varied form and substance of conservation contracts further obscures the phenomenon of contracting as an aspect of transnational environmental law. For international lawyers, conservation contracts evidence a simple reality--that transnational environmental law is happening at many more levels, and in many more ways, than our traditional theories would suggest.
WHAT ARE TRANSNATIONAL CONSERVATION CONTRACTS?
The term "transnational conservation contract" is an attempt to recognize the collective significance of diverse agreements to protect biodiversity between parties in different jurisdictions. But what kind of agreement is involved? A few examples are illustrative.
* In July 2002, the government of Guyana concluded a 30-year Conservation Concession Agreement with U.S.-based Conservation International. Pursuant to the Agreement, the conservation organization leased 200,000 acres of primary rainforest in the Upper Essequibo watershed, paying annual fees comparable to what a logging company would pay if the area were leased for forestry purposes.
* In January 2009, ecotourism company Papua Expeditions, with funding from a Chicago-based donor, concluded a Community Conservation and Ecotourism Agreement with customary landholding groups in Waigeo Island, Raja Ampats. The agreement specified that the company's contractual financial obligations and the carefully defined conservation outcomes would be provided by the community.
* In August 2010, Ecuador and the United Nations Development Program signed an agreement establishing a trust fund, which aimed at financially compensating the South American country for refraining from oil drilling in Yasuni National Park.
These agreements are transnational in the sense that they cross jurisdictions, but they are not necessarily constituted through the cooperation of states. They reveal a density of interactions between state and nonstate contracting parties. Many examples of these agreements emerge from a "payment for ecosystem services" framework that seeks to legally entrench market innovations to achieve conservation priorities. They include conservation concession agreements, forest carbon agreements, watershed protection agreements, biodiversity offset agreements, ecotourism agreements, debt for nature swamps, and conservation performance agreements. The factor uniting these agreements is choice of contract as the legal form through which transnational biodiversity conservation efforts are channeled.
Where do transnational conservation contracts fit into our accounts of international environmental law? Largely, these agreements have been situated outside international legal debates. It is in the journals of conservation biology, environmental economics, and geography that heated debates surrounding the use of these market instruments for environmental protection often flare. Law, and legal scholars, remain at the periphery. Indeed, a technocratic and instrumentalist view of law pervades accounts of transnational conservation contract negotiations, where law's role is restricted to a mechanism for ensuring "enforceability" and "bindingness."
There are consequences of law's invisibility in the debates surrounding these agreements. The first is that the language of the contracts--the terms themselves--attracts very little scrutiny. …