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Environmental Law Legislations

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Practical Difficulties of Enforcement of Legislation of Conservation of Species
Legislation for the conservation of species is notoriously difficult to enforce for several reasons.
Long lists of species are of relatively little use if few people can recognise the species concerned. The negative listing approach may help considerably in this respect, as public and enforcement personnel have only to be able to recognise a relatively small number of authorized species, as has the 'small bunch' rule for plants. An element of intention is often required in order for an offence to have been committed, yet this may be extremely difficult to prove and it is more usual for good faith to be presumed. In this context, the hunting proficiency test is particularly valuable. Hunters who have passed the test have learned about protected species and would therefore have greater difficulty in pleading ignorance of the specimens they may have taken or damaged unlawfully. Reversing the burden of proof can contribute significantly to effective enforcement. The effect of such a reversal is that possession of a specimen of a given species is deemed to be unlawful, unless the possessor can prove otherwise. For example, under the Customs Code in France, the possessor of CITES specimens must be able to prove that these have been lawfully obtained. However, great care must be taken if an offence is deemed to be one of strict criminal liability, as there may be a serious risk of injustice incompatible with democratic societies.
The enforcement of trade restrictions is easier than that of taking or collection restrictions, provided that there are both sufficient funds and personnel available. It is necessary to provide for the licensing of breeders, growers, taxidermists, processors, sellers and so on, as well as for procedures and equipment for marking and the issuing of tags. The holding of registers in which all transactions must be recorded must also be organised. This approach can work if there are enough inspectors, but it is nevertheless costly and cumbersome. Few countries go that far in practice.
Enforcement personnel must be specially trained, which is already provided for in certain countries. The Fish and Wildlife Service in the United States has its own agents. Italy and Spain have special units under the Carabinieri and the Guardia civil, but this is exceptional. Forest guards and game wardens are more commonly used in most countries. An important aspect of enforcement is to educate the public. It is vastly preferable to inform and explain rather than to embark upon criminal proceedings and impose fines. Teaching school children about protected species is now a legal requirement in a few countries. Public education is supported by the widespread use of posters and pamphlets.
In a rather large number of jurisdictions, the legislation provides for the possibility of appointing honorary or voluntary wardens on the basis of their competence and interest in the matter. Such appointments are often made from amongst the members of naturalist societies or conservation NGOs. By way of example, there are honorary game wardens in many African countries. In Europe, some Austrian and German Lander, Italian Regions, Swiss Cantons and 121Biological Diversity Conservation and the Law other countries such as Bulgaria have nature conservation wardens. The Czech Republic has Nature Guards. Similar systems are used in some Australian and American States. Wardens are officially appointed as auxiliary police officers and have the same powers as the police, except that they are not usually authorised to make arrests. Their role should accordingly consist for the most part of providing information and giving warnings. Excessive zeal may be counter-productive, especially for minor infractions committed in good faith.
B. Penalties for Offences under Conservation Legislation
Penalties vary considerably from one country to another, which may be considered as a reflection of the way in which different societies judge the seriousness of offences committed against species. Some countries rely entirely on the imposition of fines. Other countries also make use of prison sentences, generally for short periods of time, although in some countries they may be longer or even very long.
Under the Endangered Species Act in the United States, a sentence of one year may be imposed for the taking of endangered species. In Australia, a maximum prison sentence of five years was originally established for the import or export of species for which a permit is required. However, this maximum has been raised to ten years under amendments to the conservation legislation made in 1991! China allows for capital punishment for serious offences in respect of wildlife.
It should be added that a higher penalty may sometimes be imposed for offences concerning endangered species. For example, penalties under the Endangered Species Act in the United States in respect of endangered species are double those for offences related to threatened species.
In addition to fines or imprisonment, the legislation usually provides for the confiscation of specimens which have been taken, held or traded illegally. Confiscation may also often be ordered in respect of the vehicles, equipment and weapons used in the offence.
Attempting to commit the offence is usually also punishable. Some countries punish offences committed through negligence. Certain laws may provide that each violation constitutes a separate breach of the legislation. Where a large number of specimens are involved, this may amount to very substantial sums in fines.
Furthermore, legislation may authorise the withdrawal of licences and impose a prohibition against the obtaining of new licences for a certain period of time, usually several years. Some laws provide that upon a second conviction, the withdrawal of the licence may be permanent.
These provisions may apply not only to hunting and collection licences but also to traders, for whom even the temporary withdrawal of a licence might have serious economic consequences.
In some jurisdictions, legal persons can be fined for offences against species conservation legislation. In Australia, for instance, the maximum fine that may be imposed on legal persons is double that which may be imposed on natural persons.
A certain number of jurisdictions have instituted a system of damages to be paid to the State, according to a scale of values attributed to different endangered or protected species or groups of species. These values are calculated on the basis of the rarity or degree of endangerment of each species concerned. This system of payments is not the equivalent of a range of fines, but Enforcement should rather be seen as compensatory damages for the destruction of a valuable natural resource.
Countries that have adopted this approach include Bulgaria, Hungary, Spain, Turkey and Zimbabwe. It also exists at federal level in Australia and in some Australian and American States, such as Idaho. In the Australian State of Queensland, the new Conservation Act of 1992 provides for payment to be made for the "conservation value" of a species. This system existed prior to the new Act, but such payments were formerly referred to as "royalties". Payment is made to the State for any taking of a protected species, including taking under a licence or permit. In cases of unlawful taking, the level of such payments may be doubled.
Finally, perhaps the greatest problem of enforcement is the failure to prosecute offences. If law enforcement personnel are not really interested in that type of offence, public prosecutors are probably even less so, unless the offence is very serious and involves, say, large numbers of valuable specimens. Even where prosecutions are brought, courts tend to be lenient in their sentencing policy. After all, offences against nature do not affect anyone's financial interests. Moreover, in many countries where environmental consciousness is still low, harsh penalties would be perceived by the public as illegitimate and not commensurate with what are generally viewed as minor offences. At any rate, information on prosecutions and convictions is generally not available in most countries, except for important cases that have been widely publicised.

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