35433 PAPER NO. 108 B I O D I V E R I S T Y S E R I E S National and Regional Legislation for Promotion and Support to the Prevention, Control, and Eradication of Invasive Species Tomme Rosanne Young February 2006 THEWORLD BANK ENVIRONMENT DEPARTMENT National and Regional Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species Tomme Rosanne Young1 February 2006 1Tomme Young is currently serving as Senior Legal Officer at IUCN ­ The World Conservation Union, based in IUCN's Environmental Law Centre in Bonn, Germany. Papers in this series are not formal publications of the World Bank. They are circulated to encourage thought and discussion. The use and citation of this paper should take this into account. The views expressed are those of the authors and should not be attributed to the World Bank. This paper has been prepared by the Environmental Law Centre of IUCN and published as a contribution to the Global Invasive Species Programme. Copies are available from the Environment Department of the World Bank by calling 202-473-3641. © The International Bank for Reconstruction and Development/THE WORLD BANK 1818 H Street, N.W. Washington, D.C. 20433, U.S.A. Manufactured in the United States of America First printing February 2006 Abbreviations and Acronyms CBD Convention on Biological Diversity Guiding Guiding Principles for the Principles Prevention, Introduction and Cartagena Cartagena Protocol on Biosafety to Mitigation of Impacts of Alien Protocol the Convention on Biological Species that Threaten Ecosystems, Diversity Habitats or Species, CBD COP-6, Decision VI-23 CITES Convention on International Trade in Endangered Species of Fauna and MOP Meeting of Parties Flora NBSAP National Biodiversity Strategy and COP Conference of Parties Action Plan EC European Commission PRSP Poverty Reduction Strategy Paper ECJ European Court of Justice SPS Agreement on Sanitary and Phytosanitary Measures EU European Union TBT Agreement on Technical Barriers to GISP Global Invasive Species Programme Trade GISS Global Invasive Species Strategy (see WTO World Trade Organisation Bibliography) GMO Genetically Modified Organism (also sometimes referred to as `living modified organism' or `LMO') GSPC Global Strategy for Plant Conservation No glossary of relevant terms is here provided. Possibly the best existing glossary is reproduced in Scalara, 2004, which is, however, designed for informational rather than legislative purposes. Consequently, although providing a useful basis for understanding this and other discussions of the invasives issue, a glossary of this type, they should not be thought to constitute an "easy access" set of legislative definitions. Table of Contents Chapter 1 Introduction: The Need for Control and the International Response 1 Conceptual Summary 3 Summary--the Nature of "Invasiveness" 4 Complicating Factor--Pathways and the Objectives Underlying Species Introductions 7 Nature of Uses, Harms and Damages 9 Chapter 2 Standards and Guidance from International Institutions 11 The CBD Guiding Principles 12 Global Strategy for Plant Conservation 14 The 2005 IMO Ballast Water Convention 14 International Plant Protection Convention (IPPC) 16 Office International des Epizooties (OIE) 17 Global Trade-Related Instruments 17 International Co-operation and the Global Invasive Species Programme (GISP) 19 Chapter 3 Tools of National Implementation 21 Identification 22 In general--Scope of Species/Specimens Covered 23 Coverage vs. Regulation 23 GMOs and Invasives Law 25 Microorganisms and Invasives Laws 26 Relevance of the Coverage Concept to Identification 27 Lists 28 Black lists 28 White lists and Biodiversity Inventories 29 Amalgamating List Approaches 29 Listing Pathways 30 Evaluative Standards 31 Scientific Processes and Formal Standards for Risk Evaluation 32 Biodiversity Series v Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species Regulatory Control Measures 34 Primary Prohibitive/Restrictive Language 34 Regulating Introductions 36 Applying Controls on Introductions 36 Restrictions on Species Introduction and Permits 37 Enabling Programmatic Responses 37 Eradication, Bioremediation, and Restoration of Native Species 38 Incentives and Recommendations: Promoting Positive Actions 39 `Open season' 40 Regulating Government Action and Procurement 41 Controls on Incidental, Small and Unintentional Introductions 42 Oversight/monitoring and Indicators 42 Intentional Introductions 43 Unintentional and Illegal Introductions 44 Invasives in EIA--Prevention of `Further Spread' 44 Government Empowerment and Obligations: Enforcement and Remedial Action 45 Political and Social Mandate 46 Compulsion 48 Direct Action by Government 49 User/introducer Liability 49 Civil Liability Provisions 50 Criminal Liability Provisions 51 Causation and Specific Intent 51 Applying Administrative Powers/ Impact on Commercial Rights 52 Financial Provisions 52 Governmental Fundraising: Budgeting, Levies and Fees 53 Private Responsibility Provisions (The `User Pays') 55 Permits and costs 55 Direct Responsibility for Remediation 55 Loss of Environmental Services 56 Insurance and bonding arrangements 56 Transboundary Cooperation 57 Development/Implementation of International Instruments 57 Implementation-level Cooperation Across Boundaries 58 Chapter 4 Legislating Invasives Control--Challenges for Developing Countries 61 Primary (Policy) Decisions 61 Initial Policy Choices 63 Nature of primary approach 63 Acceptable Risk Levels 65 Distribution of Responsibility 66 vi Environment Department Papers Table of Contents Overall legal regime: Systemic components and approach 66 Unitary Approaches and Sectoral Coordination Generally 66 In support of Sectoral Approaches 67 Scientific Resources as the "integrating Mechanism" 67 Recognition/use of International Guidance Documents 68 Recognition/use of International Standards 69 Application of overarching principles and processes 69 Precaution 69 Basic Concerns 70 The Other Precaution--Avoiding the `Empty Niche' 71 Current Perplexities--Precaution and Invasives in CBD COP-6&7 71 Environmental Impact Assessment and Risk Assessment 72 Selection of particular legislative tools 73 Identification 73 Oversight/monitoring and Indicators 75 Government Empowerment and Obligations: Enforcement and Remedial Action 75 Financial Provisions 75 Transboundary Cooperation 76 Small and Unintentional Violations 77 Chapter 5 Conclusions--taking legislative controls to the next level 81 Biodiversity Series vii 1 Introduction: The Need for Control and the International Response "Invasive species," "alien species," "alien elements and needs relevant to governmental invasive species," "exotic species," "non-native efforts to address invasives issue, little has been species," "non-indigenous species," "foreign done to facilitate programmatic action or deci- species," "introduced species," and "pest spe- sions at national and international levels. Leg- cies" are among many terms used to describe islators and policy-makers called to make such a growing and serious environmental problem decisions generally agree that an appropriate that must be addressed at all levels (local to legal regime is essential and urgently needed. international) of the government, private and At the same time, however, a confusingly broad NGO sectors. Their potential impacts cover a array of factors stymie efforts to develop this broad range of sectoral and social factors from regime. the environmental (provoking species extinc- tions and consequent ecosystemic damage) to One of the most difficult issues to be addressed commercial (bringing about the destruction of in enabling and conducting invasives control local commercial systems based on agricultural measures is simply the need to apply practical or natural products) to social (altering human- legislative reasoning to the process. Very little is ecosystem relationships and dependencies). known or agreed regarding how to govern and regulate for the control of invasive species, for Invasive species have been cited by major inter- two simple reasons-- governmental bodies as "a leading cause of spe- cies endangerment and extinction"2 and "second · the fact that introduction of new species can- only to habitat loss as a major cause of damage not simply be prohibited; and to the planet's biodiversity," and "in fact a · the lack of present scientific ability to know serious cause of habitat loss leading to irrevers- in advance which species will become inva- ible species extinctions."3 The Global Invasive sive. Species Programme (GISP) noted that "a global estimate of environmental and socioeconomic damage from [invasive species] amounts to 5% of the global economy, or $US1.4 trillion annu- 2CBD-COP Decision VI-23, UNEP/CBD/COP/6/23 3 ally."4 IUCN's Invasive Species Specialist Group, website. 4Sellers, E., et al, (2004) citing Pimentel, D., editor. 2002. Biological invasions: economic and environmental costs While significant work has been done to of alien plant, animal, and microbe species. Boca Raton / identify, document and quantify the practical London/New York / Washington DC; CRC Press, 369 pp. Biodiversity Series 1 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species As to the first point, the legislator and policy- crafted legislative instruments will be meaning- maker cannot just order the prevention, restric- less or ineffective. tion or control invasive species introductions, even though many desire simply to minimise This paper is generally designed to consider introductions. Instead, at some level, every questions of "motivation, capability, and reality," legislative system appears to include some kind and to consider possible legislative approaches mandates that support on the introduction of (or for developing countries. It intends to achieve other changes in distribution of) all biological this process in five steps. species. Hence, legislation of invasive species This Part I provides a conceptual and scien- issues must always involve a balancing of tific summary and introduction, interests--the interests mandating introduction balanced against the interests involved in pro- Part II provides a very brief overview of tecting natural and agricultural ecosystems from some of the key global developments in the destruction by such species. field, However, as noted in the second point, it is not Part III examines in greater detail the legisla- possible to simply regulate against `harmful' or tive tools available for use in the control of `invasive' species, since a new species' impact on species introductions and invasive species, any ecosystem cannot be known with certainty. and Sometimes many years will elapse following a Part IV discusses some of the special con- species' introduction before its invasive nature cerns relating to the process of building one within its new habitat is discovered . For this or more legislative frameworks utilising the reason, it is generally thought necessary to regu- legislative tools described in Part III; and late the introduction of new species generally (or provides, in some cases a brief identification at least of `new species that may become invasive of how the selection of and use of those tools or may cause harm.') This concern illustrates the might differ in the developing country con- problem described in the first point above--in text from their use in other places. order to protected against possible harm, it will be necessary to consider the applying invasive Through these sections, this paper examines species to every new species introduced to an the nature of the need for national legislative ecosystem or bounded region. action that can constitute a positive support to the identification, prevention, eradication, and This suggests that one fact is indisputable: It is remediation of invasive species.5 The need for insufficient to rely solely or primarily on laws against invasive species, and/or simply to impose liability for the harms they cause. Legis- 5Note: it is common in papers on this topic to be intensively laced with examples of particular species and their impact lation must, at a minimum be directed at means upon invasion. Given that this is not a biological paper, it will of identifying invasives and their roles and uses not follow this practice, Numerous highly qualified authors in society, and setting appropriate limits on have provided clear and useful descriptions of recent invasive species problems, providing clear and documented information activities and species that might create invasive about these situations and their impacts. See, especially, problems, now or in future. Even then, unless it Sandlund, Schei, et al. 1999; Baskin, 2002. In some instances (where necessary to illustrate a legal challenge or problem or a is grounded in practical motivations, capabilities particular regulatory approach to, or proposal for, its solution) and situational realities, the most beautifully however a few illustrative examples may be mentioned. 2 Environment Department Papers Introduction: The Need for Control and the International Response such work is more complex than one might This work was undertaken by the author as a expect, for two primary reasons. First, of course, member of the IUCN Environmental Law Cen- is the extensiveness of the `pathways' by which tre, under contract from the World Bank. invasives problems may arise. The suite of pathways most relevant to a particular country, Conceptual Summary and the particular elements of those pathways varies greatly even among near neighbours with Underpinning the entire concept of invasives similar heritage. In some countries' legislation regulation are two very different and equally does not address a country's particular national important concepts: `invasiveness' and `path- concerns or situation, , instead using `sample' ways.' These can be generally conceived as or `model' invasive species legislation in an follows: attempt to cover all possible pathways with a single approach, resulting in a compromised · Invasiveness: The generic study of invasive structure that does not completely or appropri- species is the study of a very broad range ately address any individual pathway. When of issues, activities and damages: they used in this way, model laws can often be a bar, are united only by a scientific (factual) rather than a support, to constructive action similarity--the biological mechanisms by which they cause harm. These include not Second, the complexity and scientific nature of only preying on native species, but also the invasive species problem is well publicised interbreeding and cross pollination, habitat among decision-makers in many developing destruction, alteration of the food chain countries, as are many past examples, in which (or of the availability of essential breeding ill-chosen solutions have led to enhanced prob- grounds or nest materials), introduction of lems. This combination of knowledge and his- parasites and other actions and impacts. tory of failure has created a kind of `regulatory These mechanisms are collectively referred paralysis' in many countries. Fearing to take the to in this paper as `invasiveness.' wrong step in addressing invasives, many coun- tries have so far opted not to take any step at all. · Pathways: While the foregoing paragraph may seem unsurprising, it has one im- The object of this paper is to begin to develop a portant consequence which has, to some ex- frame of reference for legal and administrative tent, been ignored--the fact that the broad understanding of the range of invasives issues range of `invasive species' issues share and possible governmental responses. While almost nothing in common for purposes of it cannot be completely comprehensive, it has governance. Legislation looks at the way in sought to evaluate a wide range of national, which government and citizens will iden- subnational, and supranational legislation. The tify, regulate, control, oversee, remedy and work is predominantly a `desk study' (calling compensate various kinds of human action for no national visits, interviews or other on-the- and inaction. In the invasives context this ground evaluation), however, it is informed by the author's prior experience as well as some `opportunistic' interviews with national legisla- 6 These interviews were not undertaken in any systematic way, tors and implementing officials dealing with but the author would ask about invasives implementation when the opportunity arose in other work undertaken during the invasive species.6 pendency of this project. Biodiversity Series 3 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species may include activities that cause the intro- Summary--the Nature of "Invasiveness" duction of invasive species, or exacerbate The characteristic of `invasiveness' is a subject the harm they cause, as well as the risk, which has been studied in detail by experts in harm, damage and long-term concerns that biological and ecological sciences, and is well may result. The human actions to be regu- described in the works of recognised specialists.7 lated can be found in dozens (or possibly To properly understand the legal and practical hundreds) of different elements of human need for regulation, however, it is essential to interaction. In general, then, legal/practical have a minimal understanding of several key aspects of invasive species focus on specific concepts of invasiveness, and the manner in types of human actions--known as the which it manifests harm to the natural and hu- `pathways' by which invasives enter areas man-manipulated environments. and ecosystems in which they present a risk of harm. In summary, the mechanisms of invasiveness can be collectively described as "the ability of a plant, The distinction between `invasiveness' and animal or other biological specimen to spread be- `pathway' is absolutely essential for purposes yond its introduction site and become established of this discussion: "Invasiveness" is a quality in new locations where it may have a deleterious (a scientific description) of the specimens or effect on organisms already existing there."8 Oth- species and the manner in which they affect er definitions focus on the separation of a species the environment, whereas a "Pathway" is the from the predators within its original habitat, kind of human action or omission which causes the change in ecological balances through bio- or enables a species to enter and remain in a logical processes, or the nature of its causation location or situation in which it can become (unintended impacts caused by human action.) invasive. Invasiveness can be seen as a unitary Invasiveness is generally manifested through one concept, whereas there are dozens (or hundreds) of the following biological processes: of pathways, many of which bear no relation- ship or similarity to the others for purposes of governance or oversight. 7See, e.g., Sandlund, Schei, et al., 1999. This excellent and relatively comprehensive volume offers policy-makers and The need for this distinction is simple--it is not others a description of how invasive species impact ecosystems (`invasiveness') and the primary activities that enable that possible to legislate against `invasiveness' (a mechanism (`pathways.') specimen's characteristics are facts, not faults) 8This commonly-used definition is based on the FAO's but only to address `pathways.' Moreover, Glossary of Biotechnology & Genetic Engineering. See, http://www.biochem.northwestern.edu/holmgren/Glossary/ given the multitude of pathways (the manner Definitions/Def-I/invasiveness.html. It is notable that of counting them often varies according to how invasiveness need not involve `alien' species. Changes in an a country organises and divides its governmen- ecosystem may cause a former balance to be lost, and give one species a competitive or other advantage which enables tal responsibilities), it is difficult and perhaps it to overrun its habitat. Similarly, CBD Art. 8h does not unhelpful to attempt to generalise, unify or in- actually address invasiveness, calling on parties to `prevent the tegrate a country's invasives legislation (i.e., to introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species.'Taken literally, this attempt to address the invasive species issues provision could also address sheep and cattle, which cause through a single combined `invasive species damage by overgrazing. These species are not usually expected to survive on their own (and thus are not invasive), but are law.') clearly alien (non-native) in many places in which they are found. 4 Environment Department Papers Introduction: The Need for Control and the International Response · Direct destruction (introduction of a predator On the other hand, some researchers have noted, that feeds on existing animals or a grazing as to some species, that `we're seeing the same or other species that feeds on existing plants things invading over and over again, and others at rates greater than, or additional to, pre- never invading.'12 These results suggest that some existing predation levels); species rather clearly possess evolutionary char- acteristics of broad-scale `aggressiveness' (ensur- · Competition and displacement (utilising the ing survival against a broader range of predators) same food, growing spaces, nesting areas and others equally clearly do not. As yet this fact and materials, or other ecosystem elements has not been generally recognised as a basis for used by existing species, and able to outper- narrowing the field of `potential invaders.' It may, form or otherwise drive out those species); however, indicate the possibility that scientists will, at some point, identify a specific set of char- · Interbreeding (hybridisation with genetically acteristics which predispose some species to be similar species); invasive in a larger percentage of cases.13 · Ecosystem destruction or alteration (changing For the present, however, it is agreed in scientific the physical and chemical characteristics of circles that it is not yet possible to develop and soil, or other modifications of natural and apply a system for `weed characterisation' as semi-natural habitats, often causing a loss of a definitive means to determine invasiveness. ecosystem resilience)9; Some nascent systems have been developed · Introduction of diseases and parasites (this item and are being scientifically studied (tested), and refers to organisms carried by the aliens, one such system is currently incorporated in a which are more destructive to other species national evaluation system. While some compa- in the target ecosystem.) nies apparently attempt to use these systems to support claims that their genetically engineered To the non-scientific eye these factors are rela- (or conventionally developed) varieties will not tively easily accepted and understood--the risk become weeds,14 there is not scientific consensus of harm to the environment, including to both native and non-native (agricultural) species, from 9 For example, in Italy, a rodent, the coypu (Myocastor coypus) the introduction of a new biological component was originally introduced in the last half of the Twentieth century, for fur-farming. Now naturalized into the landscape, seems completely clear. Unfortunately, that clar- coypus' digging weaken riverbanks and destroys agricultural ity is not shared by the biologists and other spe- crops. Panzacchi, et al., 2003 cialists, who note that scientific understanding of 10 Sandlund, Schei, et al. 1999. 11 invasiveness and how it operates ecologically is Id., especially Chapters 1, 7 and 8. 12 still quite restricted.10 Hence, for example, many Baskin, 2002, Chapter 6. 13 Apart from GMOs and new hybrids, most species are introduced species have become invasive only af- believed to have at least some ecosystems in which they are ter staying passive (remaining in a non-expand- non-invasive. ing state) for many generations. At some point, 14 Williamson, 1996, at 61, Baskin 2002 at 132. Some current years after introduction, these species `suddenly work on evaluating/predicting invasiveness is described in Mack ,1996, and Reichard, & Hamilton, 1997 (discussed became invasive and "aggressive",' expanding to below). These systems examine only whether the species, dominate the local environment, for reasons that which is being brought into the ecosystem for cultivation would spread from the area and continue to propagate naturally. are not understood and thus currently neither They do not consider whether or how they might cause harm to preventable nor predictable.11 biodiversity. Biodiversity Series 5 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species on the reliability of these systems. The results of list mechanisms in legislative or administrative such use depend to a large extent on the country instruments and procedures, can be problematic, in which the varieties are being introduced-- particularly where they apply country-wide. In both (i) its policy regarding the balance between that case, it may be necessary to over-regulate, scientific concerns and industrial and other and to list and attempt to control all species objectives; and (2) its confidence in its adminis- that would or could be dangerous in any of the trative capability--i.e., to monitor, control and country's ecosystems. While this approach may manage post-introduction risks. provide `legal certainty' to those who desire to introduce new species or varieties, it may do so The converse cases are similarly difficult to pre- at the cost of prohibiting beneficial and useful dict. Many introduced species are found to re- introductions . quire external support to flourish (for example, most agricultural and some ornamental species The impacts of invasives are most concentrated, require regular inputs from farmers, gardeners, and thus most devastating, in island ecosystems ranchers, and others in order to continue to and in lakes with high numbers of endemic spe- grow and thrive in their new surroundings.) cies. There is also evidence that ecosystems that However, even the most delicate species may have already been modified by human action find some areas in which they are introduced to (especially agricultural areas) are more suscep- be particularly commodious, enabling them to tible to invasion, because an ecosystem that has interbreed with native or established species, or been forced to adjust to human influences is find other ways of entering the ecosystem on a potentially less stable than a natural ecosystem. more permanent basis. Although natural ecosystems are constantly changing, they do so in a manner and at a rate Perhaps most important, invasiveness is a func- that enables them to become more robust than tion of two factors--the characteristics of the those which have been changed recently by introduced species, and the particular ecosystem anthropogenic factors.18 into which it is introduced.15 As a consequence, even if the consequences of introduction of a One key factor for the administrator, lawyer or particular species are well studied in a particular legislative draftsman addressing these issues case, the possibilities remain almost infinite is the scope/definition of any invasiveness regarding how the same species will impact an- problem. Often this discussion focuses not on other ecosystem, even if that ecosystem is nearly whether the species is invasive, but whether it is identical to the first.16 This lack of predictability is one of the most seri- 15Comparable research regarding the ecosystem side of the ous gaps in current national and international equation (whether a given ecosystem or biome is `invasion efforts to address or control invasive species prone or invulnerable') has been less popularized, but is also ongoing. Elton, 1958. More current research on `invasibility' is problems. The common approach is to seek to briefly described in Baskin, 2002, at 139­143. identify a `blacklist' of invasives17 or provide 16H. Mooney, personal communication. It is similarly difficult some other easily determinable standard that or impossible to predict the invasiveness of one subspecies or variety within an ecosystem by examining the role of another will enable most international movement of spe- subspecies. Id. cies to go forward without interference. How- 17See, e.g., "100 of the World's Worst Alien Invasive Species" ever, as noted below, the development of such 18Williamson, 1996 6 Environment Department Papers Introduction: The Need for Control and the International Response `alien.' Scientifically, for these purposes, `alien' is · A large number of other pathways, however, not a reference to jurisdictional status (whether involve the introduction of species as a the specimens involved or their progenitors secondary impact, where a human actor did have crossed national boundaries), but rather not have any specific intention to introduce focuses on whether the varieties, species or that species. subspecies are native to (or already naturalised in) the ecosystem in question. In this sense, For purposes of governance and control/elimi- `alien-ness' is a matter of degree, rather than a nation of invasives problems, this division clear-cut distinction, since an astounding level between intentional and unintentional introduc- of intentional and unintentional human intro- tions begins to demonstrate the problem po- duction has occurred over many millennia.19 tentially caused where one attempts to address Integration of the scientific and legal views of invasives problems comprehensively. Controls alien-ness can present challenges to the legisla- on intentional introductions will be completely tive draftsman. different from those needed to address uninten- tional pathways, with the latter posing the more difficult and persistent problem. Even if the Complicating Factor--Pathways and the scientists are able to firmly and finally decipher Objectives Underlying Species Introductions the key to the riddle of invasiveness, that infor- The most serious difficulty in legislative control mation will only be useful if decision-makers of invasive species is the fact that many intro- can be aware of all potential introductions, and ductions of new species are necessary. Through- able to apply their scientific analysis in advance out a long period of history, the introduction of that event. and `acclimatisation' of species was viewed as Examples of the primary mechanisms of in- a positive contribution to improving the hu- tentional and unintentional introductions may man environment--enhancing food security, provide additional understanding of the scope `recovering' desert areas and swamplands for and nature of the legislative challenge regarding human use, and other key objectives. To this day, invasives: humans must often `tempt fate' by introducing new species for a similar variety of very impor- tant reasons. Hence, it is not sufficient simply to impose complete restrictions on the introduction 19 See, Diamond, J. (1998) GUNS, GERMS AND STEEL: A SHORT HISTORY OF EVERYBODY FOR THE LAST of new species, nor even to call for temporary 13,000 YEARS, (noting the extent of demonstrated species moratoriums on such actions. introduction dating back across nearly 14,000 years of human history and prehistory.) See also, McNeely, J. Ed., (2001) Species introductions occur through a number THE GREAT RESHUFFLING: HUMAN DIMENSIONS OF INVASIVE ALIEN SPECIES (IUCN) for a more recent of mechanisms of human intervention. Typically, context on human-caused species movement. these pathways may embody either `intentional' 20 This paper will refer to the introduction of `species' but uses or `unintentional' mechanisms: that phrase to include introductions of subspecies and even varieties, where appropriate. In point of fact, many `species introductions' are actually the introduction of varieties or · Many pathways relate to the conscious subspecies, in an area in which other subspecies and varieties decision to bring a new species20 into an of the same species already exist. Such varieties/subspecies area and introduce it into the uncontrolled may become or have the potential to become invasive, through biological processes (genetic flow and interbreeding) whether environment. native or safely introduced and naturalised. Biodiversity Series 7 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species · (intentional) introduction of new agricultural operations not directly connected to goods and aquacultural varieties, for purposes of being moved in transit;24 increasing production, expanding markets, and providing food security (varieties re- · (unintentional) spread of released species sistant to pest, disease, weather anomaly, or across jurisdictional boundaries;25 other factors that can impact food produc- Each of these possible pathways may be either tion in the area); `legal' (permitted or authorised in legislation), `il- · (intentional) introduction of biological legal' (knowing or unknowing violation of law), agents as a proactive means to control or `unregulated' (not directly addressed in law). biological problems (to eradicate alien However, as noted in the previous section, it is species, to control naturally occurring or not generally possible to specifically list all inva- naturalised species whose natural preda- sive species, or even to specify a definite set of ob- tors have disappeared, to create a limiting jectively determinable characteristics of invasive factor where a species' natural barriers species. Hence, unless the human pathway for all have been breached or destroyed,, or other controls and balances essential to existing 21 ecosystems) without resorting to chemicals See, for example, Young, T., LEGISLATION AND INSTITUTIONS FOR MARINE AND TERRESTRIAL or other methods;21 BIODIVERSITY CONSERVATION AND NATIONAL PARKS IN THE SEYCHELLES (FAO, 1992­1993), regarding · (intentional) introduction of new varieties for the introduction of barn owls in the Seychelles as a biological control of the growing problem of another (unintentionally) gardens, landscaping and other "controlled" introduced species­rats. The owls found it easier to prey on introduction purposes; native species than to take up the task of controlling rats, resulting in an even greater threat to the ecosystem, and a · (intentional) cultivation, fostering or breed- doubling of the number of introduced species causing problems 22Although invasive species are often vectors the spread of ing of specimens for long-term study or disease, this paper will generally not consider bacteria, viruses, experimentation; and other disease-causing microorganisms themselves to be `invasive species.'These matters are dealt with in other forums. · (unintentional) bringing in pests, microor- However, the distinction between the species that carry such pathogens and the pathogens themselves may be somewhat ganisms, seeds, and other `hitchhikers' hid- blurred in many instances. This paper's focus on the questions den in the midst of processes for the of invasiveness (impact on ecosystems) and pathways (human action causing the movement of species later found to be invasive) is intended to avoid the necessity of narrowing the · transport of goods,22 relevant definition. Further aspects of the definitions question are discussed in Part III.A below. · movement of personnel, property and 23Environmental officials in Indian Ocean countries frequently equipment; cite the invasiveness of aquarium fish (released when a family moves from the region) on inland waters. · (unintentional) the escape and/or release 24For example, the intake and evacuation of ballast water in international shipping, as discussed in Part II.C below. of pets and other specimens that were not Similarly, the transport of equipment for military and intended to be introduced into the environ- other purposes, has been cited as a primary mechanism for ment;23 movement of species. Scalara, 2004. 25CBD meetings often discuss particularly difficult problems · (unintentional) human movement through in Africa relating to the movement of aquatic invasives through African rivers to infest countries into which they have not been procedures and mechanisms for actions and imported in any intentional or formal way. 8 Environment Department Papers Introduction: The Need for Control and the International Response species movement is controlled, it is essentially alien species, it is also the sector in which the impossible to control the entry and prevent the socioeconomic damages caused by invasive spe- introduction/impact of invasives. Unfortunately, cies can be most costly and damaging. The actu- many pathways are not directly or easily regu- al social costs, however, are substantially wider lated, given the fact that regulation must balance than the financial impacts however. Impacts on the needs for introduction (as described above) native ecosystems and species may ultimately against the risks of harm from invasives--risks lead to a wide range of secondary effects. that cannot at present be easily quantified. As noted above, a great many different sectors and Many sources have noted a number of deriva- commercial/social purposes may generate direct tive impacts of invasives, which, although not introductions of species for important national particularly a function of the introduction or purposes. Regulation of invasive species may invasion, may serve as an indicator of the depth take a distant second place to these objectives. of the interconnection between the alteration of any one ecosystemic/social component These three elements-- with all the rest. For example, the explosion of introduced Nile perch (Lates niloticus) in Lake · the type/sector of activity, Victoria, in addition to being the apparent cause of the disappearance of 300 of the estimated 500 · whether its introduction was intentional or endemic fish species in that ecosystem is also unintentional, and cited as the indirect cause of the deforestation · whether it was legal, illegal or unregulated of the surrounding area, increase the amount of wood cut for smoking the fish caught by local constitute the primary bases currently used for fishermen. This deforestation, in turn, has led to addressing invasive species issues. As a practi- an increase in soil erosion, causing the eutrophi- cal matter, however, there remains a fourth cation of Lake Victoria and ultimately fostering element--the nature of the introducer/actor the invasion of South American water hyacinth causing the introduction or spread of invasive (Eichornia crassipes) in Lake Victoria. Studies species. From a governance perspective, there indicate that the presence of water hyacinth are significant differences between (i) large has impactedaffects both water consumption commercial entities, (ii) private individuals and and the levels of dissolved oxygen in the water, small enterprises (including small farmers and causing other die-offs within the ecosystem. This others acting with commercial intentions) and chain of events was also blamed for an ultimate (iii) research institutions and collections. These decline in traditional sources of local incomes, differences include variance in the introducer's leading to malnutrition of the inhabitants level of intention/willingness to comply with all around the lake.26 relevant requirements, as well as his awareness of those requirements, and understanding of the In addition, natural selection does not cease (but issue as applied to their activities. in fact may operate more intensively) in the face of species invasions. Ecosystems adjust around significant introductions, displacements or other Nature of Uses, Harms and Damages While the agricultural sector is one of the most 26 See, especially IUCN Regional Office for Eastern Africa, common sources of intentional introduction of 2004. Biodiversity Series 9 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species major changes relatively quickly--altering mi- A different kind of controversy is noted in other gration and use patterns, and creating new de- countries where house pets (particularly cats) pendencies and ecosystemic interrelationships. have been released locally and `gone feral' Thus for example, long established and invasive (turned to living off natural sources, rather than aquatic weeds in Kenya's Lake Naivasha were returning to their owners.) Their impact on wild discovered to serve an ecological function for and native species, has led to strong calls for the the ecosystem as it has evolved following the in- removal of these animals from the wild; how- troduction of these species.27 Social changes may ever, pet owners often provide an equally strong also alter human interactions, as in the Kafue opposition to such movements.31 Flats area in Zambia, where commercial use of water hyacinth fibres (encouraged as a means of involving the public in a mechanical weed eradi- cation programme) has served as a replacement for some livelihoods affected by the impacts of the invasion itself.28 27IUCN EARO, 2004. 28IUCN ROSA, 2004. Invasive species can also be the focal point of 29The hunters sit in gun emplacements while employees of controversy where for example relatively long- the hunting reserve drive large herds of deer across their path. A similar example is found in the United States where the established species, which continue to cause State of Florida defends its feral hogs (introduced and harmful considerable damage to ecosystems and agricul- invasives) against federal eradication plans, owing to the value of their recreational use by hunters. Klein, Filling the Gaps, ture, have over time given rise to local financial 2004. uses. In Mauritius, for example, introduced 30Personal communication, Wahab Owadalli. Mauritius was deer generate a not-insignificant income stream not populated by humans until the Seventeenth Century, and its for private recreation providers who offer their tortoises, avian life (including the `Dodo bird'), and hardwoods are often cited as examples of the devastation and extinctions lands as `hunting preserves' for a somewhat caused by intentional and unintentional human action. unique form of hunting referred to simply as 31On one hand, in Australia, advocates of pet control propose `la chasse.'29 The deer are a threat to remaining strong measures (one public figure asks cat owners to `turn your cat into a hat'); in other countries, the advocates of cat native plants, and the island's fragile pre-colo- protection take a different view. In Cyprus, for example, the nial (pre-human-habitation) ecosystem, which movement of foreign expatriates to/from the island has created developed over long planetary ages to create a substantial population of former housecats which have gone feral. Pet owners have funded an informal `cat sanctuary,' a balance between a range of non-ruminant in which cat food is provided. This sanctuary is very near ground dwelling species (reptiles and birds) to a wildlife sanctuary that includes both a migratory bird and a long-lived hurricane-resistant network habitat and a sea turtle nesting beach. A related example of this phenomenon was evident in Mauritius in the 1980s and of forest plant species.30 Local efforts to address 1990s, when the project of removing (invasive) rabbits from invasive species concerns must contend with a Round Island was opposed by NGOs, eventually requiring the agency to capture the rabbits, and preserve them in-situ. (These strong faction supporting the retention of this examples are taken from the author's experience in these particular species and sporting activity. countries.) 10 Environment Department Papers 2 Standards and Guidance from International Institutions Between 1996 and 2002, the issue of invasive The following discussion briefly summarises species received widespread international at- the basic role of international instruments and tention, beginning with the Norway/United action in the field of invasives control and Nations Conference on Alien Species (Trond- regulation, with particular attention to the heim, 1996)32--the seminal international expert manner in which global developments can or conference which addressed this issue and the must be addressed at the national and regional needs for immediate action. The Trondheim levels. Conference generated several major initiatives, and was the main forerunner of the Global To date, work on invasive species issues at the Invasive Species Programme (described below.) international level (summarised in Annex 1) has A primary outgrowth of this meeting was the focused on two avenues of action: Developing CBD's work in the development of an inter- guidance for national and bilateral/regional national consensus on the importance of and implementation; and setting priorities and potential methodologies for addressing inva- targets for international assistance. With the sives issues. This process initiated an extremely exception of a small but persistent legal `glitch' successful international programme focused in the adoption of the CBD decision adopting on the particular shared needs of governments `Guiding Principles for the Prevention, Introduc- and others seeking to address or respond to the tion and Mitigation of Impacts of Alien Species threats damages and potential damages posed that Threaten Ecosystems, Habitats or Species,' by invasives. this work has rather clearly reached the stage at which further global negotiations and instru- The increase in international political and legal ments are not a priority need. Rather, it appears developments and guidelines relating to inva- that the primary focus should be on enabling sive species issues, since the 1996 meeting has national and bilateral/regional implementation been significant; however, since 2002, some of efforts, through technical assistance and capacity this momentum has been temporarily lost due development. to a variety of factors, discussed in Annex 1 to this Report. Even with maximum action at the Consequently, in order for current international international level, these initiatives can only be action to operate as a contribution rather than a effective through direct implementation at the national level. 32Schei, P.J., 1996. Biodiversity Series 11 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species diversion from effective action, it will be neces- In furtherance of this one sentence mandate, sary to focus on three actions: the Parties have adopted `Guiding Principles for the Prevention, Introduction and Mitigation · Financial, technical and human support for of Impacts of Alien Species,'36 (the `Guiding national and subregional implementation of Principles') and undertaken ongoing work `to invasives-related controls; identify and explore, from a technical perspec- tive, the threats of invasive alien species to bio- · Development of specific standards for interna- logical diversity, including various pathways for tional movement of particular types of prod- the transmission of invasive alien species.'37 The ucts, vehicles and other items raising high Guiding Principles strongly call on parties to levels of concern relating to invasive species; · Apply the `precautionary approach' (in · Addressing the interaction of environmental the form set forth as Principle 15 of the and precautionary concerns with trade and Rio Declaration) in all `efforts to identify commercial concerns, including the prin- and prevent unintentional introductions ciples of non-discrimination under the WTO [and] decisions concerning intentional and its (Uruguay Round) Agreement on the introductions,' as well as `when considering Application of Sanitary and Phytosanitary eradication, containment and control mea- Measures (SPS Agreement), and the Agree- sures in relation to alien species that have ment on Technical Barriers to Trade (TBT become established.' In regard to the latter Agreement.) the principles note that `lack of scientific The body of international work on invasives certainty about the various implications of issues that is already completed represents a an invasion should not be used as a reason major contribution of international processes to for postponing or failing to take appropriate invasives implementation in national policy. At eradication, containment and control mea- the global level, the primary elements of that sures,'38 development are embodied in a small number of · Give preference to measures that prevent documents, which are very briefly summarised introduction and establishment of invasives below. These are, at present, the primary interna- tional guidance relating to national and regional invasives-related governance. Nearly all have 33A broad range of international secretariats, and organizations are engaging in invasives related standard development. approached this issue from the conservation 34Rio (1981) perspective.33 35CBD, Art. 8h. 36Generally contained in CBD COP Decision V/8, Annex I The CBD Guiding Principles UNEP/CBD/COP/5/8 and CBD COP Decision VI/23, Annex, UNEP/CBD/COP/6/23 (discussed below.) As explained in detail in Annex 1, the COP Decision adopting the Guidelines The Convention on Biological Diversity (CBD)34 is mired in controversy even as of this writing (nearly 4 years specifically requires its Contracting Parties to-- after the decision.) The contents of the document remain of particular interest however, and for this reason are summarised as far as possible and as appropriate... prevent here. 37CBD COP Decision VII/13, UNEP/CBD/COP/7/13, the introduction of, [and] control or eradicate, paragraph 7, and see CBD COP Decision VI/23 (discussed those alien species which threaten ecosystems, below), UNEP/CBD/COP/6/23, paragraph 9. habitats or species.35 38Guiding Principles 1 and 10.2. 12 Environment Department Papers Standards and Guidance from International Institutions (over measures for control or eradication), - more generally, that `these measures both to increase cost effectiveness and as should be based on a risk analysis of the better protection for biodiversity, 39and threats posed by alien species and their potential pathways of entry. Existing · Address established invasives (through appropriate governmental agencies or eradication, containment or control authorities should be strengthened and measures) at the earliest possible stage. broadened as necessary, and staff should Although not expressly giving priority to be properly trained to implement these eradication over the other two options, the measures. Early detection systems and re- Guiding Principles indicate that it will often gional and international coordination are be preferred, and suggest that the other two essential to prevention.'43 will be used `when eradication is not appro- priate.' The Guiding Principles are primarily intended to motivate national policy level action, rather Regarding governance measures to implement than specific instructions for legislation. Con- this overall guidance, the Guiding Principles sequently, they do not offer any suggestion or offer only very simple and general recommenda- recommendation regarding legal or institutional tions, including measures in support of powers to eradicate established invasives. · regarding `prevention': The principles call on States to `implement border controls and The Guiding Principles and the significant level quarantine measures.' They further state that of international interest and involvement in their `No first-time intentional introduction or development were both a major achievement subsequent introductions ... should take place of the CBD and a major indication of global without prior authorization from a competent commitment to take action. In the final deci- authority of the recipient State'40 sion adopting those provisions, the COP urged countries to take other key actions, including the · regarding `control': they suggest that following direct governance requirements: `States should consider putting in place appropriate measures to control introduc- · Create mechanisms to coordinate national tions of invasive alien species ... accord- programmes; ing to national legislation and policies,' and that `States should have in place pro- · `Review relevant policies, legislation and visions to address unintentional introduc- institutions... and, as appropriate, adjust or tions [that] could include statutory and develop [them]'; regulatory measures and establishment or strengthening of institutions and agen- cies with appropriate responsibilities'41 39Guiding Principle 2 40Guiding Principles 7.1 and 10.1 · in both areas, they note that `[c]ommon 41Guiding Principles 7.2 and 11.1 pathways leading to unintentional intro- 42Guiding Principle 11.2. It should be noted that this reference ductions be identified and appropriate uses the term `pathways' as a synonym for `governance sectors' rather than its more general definition as used in this paper provisions to minimize such introduc- 43Guiding Principles 7.3 and 10.2. tions be in place'42 and Biodiversity Series 13 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species · Promote awareness of invasive species is- `species-by-species' regulatory approach, and sues and concerns among policy makers at that, although CITES is identified as a primary all levels of government...; focus of this target, trade which that does not involve the movement of endangered species is · Facilitate stakeholder involvement; also addressed. · Collaborate with trading partners and neighbouring countries... to address threats The 2005 IMO Ballast Water Convention of invasive ... species; and In 2005, a new international instrument was ad- · Develop financial measures, and other opted designed to address a particular pathway policies and tools, to promote activities to of introduction of marine invasives--ballast reduce the threat of invasive alien species.44 water carried in international shipping. This pathway is one of the most important sources of In addition, of course, the decision notes the invasives problems, causing the introduction of need to address technical needs, including an estimated 3000 marine plant and animal spe- especially the need for more information on cies in areas in which they can become invasive invasiveness and particular mechanisms for its and damage fisheries and other ecosystems prediction and control, as well as other types of (Bright 1999). Coastal water ecosystems, which research into risks, pathways, control mecha- are important for a variety of human and ecolog- nisms, opportunities for co-operation, and the ical needs from fishing to carbon sequestration, development of various assessment tools. The can be heavily impacted by new releases of Parties agreed to promote these efforts both ballast-water carried organisms and microorgan- directly and through relevant organisations. isms.48 Such information must not only be collected but shared--particularly through the CBD clearing- Under this Convention,49 each Party must take house mechanism.45 nine actions to "give full and complete effect" to the Convention's provisions: Global Strategy for Plant Conservation · Require ships under its flag or authority to undertake ballast water management activi- The 2002 Global Strategy for Plant Conservation ties ("mechanical, physical, chemical, and (GSPC) is also relevant, providing some addition- biological processes, either singularly or in al relevant recommendations--particularly that 44Guiding Principles §§ 10.b, .c, .e, .f, .g, 11, and 12.b, · States put `management plans in place for 45Id., §§ 24­26. at least 100 major alien species that threaten 46Adopted under the CBD, by CBD COP Decision VI/9 plants, plant communities and associated (UNEP/CBD/COP/6/9.) habitats and ecosystems,'46 and 47GSPC para C (xi). 48See, e.g., Sapp, 1999, which discusses the introduction of · No species of wild flora to be endangered by a pathogen, apparently from ballast water, that caused the international trade.47 near-total destruction of the long-spined sea urchin in the Caribbean. 49Adopted February 2004 (not in force.) The full text of the These very specific suggestions indicate that draft Ballast Water Convention is available on line at http:// the framers of the GSPC support a `black-list' or globallast.imo.org/index.asp?page=mepc.htm. 14 Environment Department Papers Standards and Guidance from International Institutions combination, remove, render harmless, or water discharge that is required to deal with an avoid the uptake or discharge of harmful emergency (not caused by the owner/officer's aquatic organisms and pathogens within negligence or recklessness), and to vessels that Ballast Water and Sediments"); operate legally and by permission within a single country's jurisdiction. Military and other · Ensure that all vessels within their juris- (non-commercial) government vessels are also diction comply with those requirements, exempted. Parties are called upon to ensure that without different treatment of the vessels of exempted vessels' operations are consistent with non-parties; ballast water requirements, "so far as reasonable and practicable." · Adopt and apply legal prohibitions and ap- propriate sanctions, applicable to all of the The basic mechanism of implementation is the Party's vessels, regardless of where the vio- creation of a "ballast water management plan" lation occurs (based upon reports through for each vessel, including programmes for cer- IMO); tification and record-keeping, as well as specific · Ensure the existence of adequate sedi- ballast water management practices (pumping, ment reception facilities (the use of which treatment, sediment minimization, etc.). The does not cause undue delay) at ports and planning requirement enables each vessel to terminals where ballast water tanks may be adopt the procedures that are most appropriate emptied, cleaned or repaired; to its configuration, operations and other factors. The goal of planning and certification will be to · Make full information available to the IMO meet specific ballast water management stan- and to other Parties regarding their legal re- dards, and such standards are under discussions quirements, and the location and availability by the Marine Environment Protection Commit- of reception facilities; tee of the IMO. · Monitor compliance with ballast water man- To enable enforcement of these requirements, the agement requirements; draft Convention provides that the Parties' of- ficials may board and inspect vessels, and where · Monitor and maintain records concerning appropriate take and test ballast water samples. the effects of ballast water management Where harmful conditions or practices are activities; detected, inspecting authorities are entitled to "take steps to warn, detain or exclude the ship" · Encourage the continued development of until conditions that would threaten health or standards and methods for ballast water the environment are remedied. management; and · Make scientific and technological develop- The draft Convention recognizes regional agree- ments and monitoring data available to ments as a key avenue of practical implementa- other Parties. tion. As a consequence, it encourages Parties to co-operate in other ways to achieve the Conven- As currently drafted, exemptions would apply tion's objective including "in a given geographi- to vessels designed in a way that does not enable cal area to... conclude regional agreements... for or require them to carry ballast water, to ballast preventing and minimizing the transfer of harm- Biodiversity Series 15 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species ful aquatic organisms and pathogens through to countries on measures to protect plant life or ships' ballast water". It further imposes a good health from the introduction and spread of pests faith obligation on other Parties to co-operate or diseases. One of the most important concept with such regional agreements, and to develop standards developed under the IPPC is ISPM "harmonized procedures" regarding these re- No. 11, "Pest risk analysis for quarantine pests" gional agreements (FAO, 2001b), adopted by the Interim Commis- sion on Phytosanitary Measures (ICPM) at its 3rd Session in 2001. In addition, the ICPM, at International Plant Protection Convention its 5th Session in 2003, adopted a supplement to (IPPC) ISPM No. 11 to address risks to the environment The International Plant Protection Conven- in order to take into account CBD concerns, tion (IPPC)50 is intended to "secure common especially with regard to invasive alien species. international action to prevent the spread of More recently, the IPPC has drafted another pests affecting plants and plant products."51 supplement to ISPM No. 11 to address pest risk However, its focus on agricultural uses which analysis for LMOs.53 are, by definition uncontained, enables it also to play a role in the conservation of plant diversity and the protection of natural resources--a role that is recognised in its text and practices. The 50All references are to the New Revised Text of the IPPC IPPC extends these protections to wild flora as (1997), which entered into force on 2 October 2005. This text attempts to address problems faced in former text well as cultivated flora, and to both direct and revisions, under which it was difficult to identify which "IPPC indirect damage from pests and weeds. As a parties" were parties to the revision, and to understand their relationship to those who were not. In accordance with Article consequence, the CBD, FAO and IPPC have es- XIII, paragraph 4 of the Convention, the new revised text came tablished a close collaborative relationship. This into force with respect to all Contracting Parties as from the has in particular extended to the inclusion of thirtieth day after acceptance by two-thirds of the Contracting Parties, i.e. on 2 October 2005. CBD concerns in the development of new inter- 51FAO "The State of Food and Agriculture 2003­2004", national standards for phytosanitary measures Chapter 5: Health and environmental impacts of transgenic (ISPMs). crops. 52These provisions are generally expressed in terms of GMOs, The IPPC has identified potential pest risks that but they are instructive regarding the hitherto incomplete understanding of how the IPPC might apply to macro species may need to be considered, including: manifesting certain characteristics. 53This draft standard has undergone extensive technical · new genetic characteristics that may cause discussion and consultation throughout its development. It invasiveness (drought resistance, herbicide currently lists four potential phytosanitary risks of LMOs that may need to be considered in a pest risk analysis: (i) Changes tolerance, pest resistance), in adaptive characteristics (drought tolerance of plants; herbicide tolerance of plants; alterations in reproductive · gene flow (transfer of genes to wild relatives biology; dispersal ability of pests; pest resistance; and or other compatible species ), and pesticide resistance); (ii) Gene flow (e.g., transfer of herbicide resistance genes to compatible species; and the potential to overcome existing reproductive and recombination barriers); · effects on non-target organisms (beneficial (iii) Potential to affect non-target organisms (changes in host insects or birds).52 range of biological control agents or organisms claimed to be beneficial; and effects on other organisms such as biological control agents, beneficial organisms and soil microflora that ISPMs developed under the auspices of the result in a phytosanitary impact (indirect effects)); and (iv) the IPPC provide internationally agreed guidance possibility of phytopathogenic properties. 16 Environment Department Papers Standards and Guidance from International Institutions Office International des Epizooties (OIE) have intersected.54 In the context of invasives, the primary interface (conflict) is often described Another important element of the body of in- as the conflict of precaution and science-based ternational invasives instruments, the OIE is an trade restrictions. From an environmental intergovernmental organisation created by Inter- perspective, it is clear that precaution must be a national Agreement on 25 January 1924, which primary guiding concept in the regulation and is focused on the sharing of veterinary science control of invasives, given that the impacts and information as well as mutual reporting regard- risks of species introductions are not always ing the detection or spread of animal diseases in predictable, or even oversee-able. In the WTO, member countries. however, one primary international regulatory It has a specific mandate: "[T]o safeguard world focus is directed to ensuring that environmen- trade by publishing health standards for interna- tally phrased control measures are not disguised tional trade in animals and animal products." To efforts discriminate against foreign goods and this end, the OIE develops normative documents services. relating to rules that Member Countries can In brief, debate and controversy over national use to protect themselves from the introduction invasive species controls focuses on the Agree- of diseases and pathogens, without setting up ment on Sanitary and Phytosanitary Measures unjustified sanitary barriers. (SPS Agreement)55 of the WTO, whose primary Perhaps most importantly, the World Trade emphasis is very different from the overwhelm- Organization recognizes OIE standards as ingly environmental, social and developmental `reference international sanitary rules,' given focus of all other invasives work. Although in that they are prepared and adopted by elected general, invasives regulations are adopted to Specialist Commissions and by Working Groups protect human, animal or plant life or health most of whom are drawn from within the from pests, disease and other ecosystemic diffi- OIE's 156 Collaborating Centres and Reference culties, the SPS Agreement focuses on ensuring Laboratories It is primarily this status as a WTO that national laws espousing these objectives international reference organization on biologi- are based on science and operate in a manner cal transfers which has raised the profile of the that enables non-discriminatory application. OIE in ongoing discussions relating to invasive species. 54The relationship between global trade agreements and other international instruments is roundly debated, and still Global Trade-Related Instruments undecided in many contexts. It is notable, however that 146 countries (out of the WTO's total membership of 149 (as of 11 December 2005) are currently both Contracting Parties to The international trade framework must be the CBD and members of the WTO. This suggests that these mentioned in this connection, although its countries have a duty to implement all aspects of both laws. impact on national implementation of inva- See Young, T., 2004. 55 sives-control objectives is, at best, mixed. The While the SPS Agreement is the primary focus of discussions relating to invasive species controls (measures controlling the WTO has raised but not yet resolved a major entry and/or introduction of invasives are generally considered dichotomy in international processes, which is to fall under SPS provisions), other WTO instruments, including the Agreement on Technical Barriers to Trade (TBT concurrently impacting many other issues in Agreement), are also relevant and instructive. See Cooney, R., which global trade and environmental issues et. al. 2005; Jenkins, 2004. Biodiversity Series 17 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species Box 1: The Precautionary Principle and Preventing of Alien Invasions: Tensions between Trade and Environment Regimes While invasive species can wreak economic (as well as environmental) havoc, having major impacts on existing agriculture, forestry, fishing or shipping, the global trade system by which most species movements are facilitated is more focused on the extent to which invasive species controls can interfere with commercial relationships and transactions, and can have a demonstrable impact on current/immediate profits. This focus sets up a tension between the WTO's approach and those of other environmental agreements, including the CBD, which focus on broader and longer term impacts, · calling for the application of a precautionary approach to preventing spread of invasives, · implying or requiring risk analysis in advance of any intentional introduction (rather than only where there is some evidence of threat), and · suggesting that only those species unlikely to threaten harm to this wider set of issues, including biological diversity (see CBD VI/23 Principles 1, 10) should be permitted to be introduced. Source: (Cooney, 2004) Typically, one can avoid trade sanctions by ations in which there is not currently sufficient being scrupulously equal in applying legal evidence of risk) As further discussed in Part requirements and restrictions to both domestic IV.B, below, the CBD principles require up-front and foreign goods. In the context of invasives action where there is doubt or some indication species controls, however, this approach is of risk (even if science has not yet demonstrated nearly impossible, because it is necessary for that a risk does or does not exist), where the SPS invasives protections to focus special attention requires scientific evidence of risk before any on the movement of foreign or alien goods to restriction can be imposed. other ecosystems. Consequently, in addition to basic restrictions on discrimination against For legislative purposes, the challenge is not foreign trade, the SPS Agreement requires that whether a country may impose precautionary any measure to restrict imports must be based measures to control possible introduction of on "sufficient scientific evidence" and risk as- invasive species, but whether these laws can be sessments. phrased and applied in a way that satisfies WTO The key issue to be addressed by the interna- tional community in reconciling ecosystemic, so- 56Within the last 5 years, "Precaution" has moved from cial and development-oriented IAS issues with its old "home" in the preamble of many documents, now residing in mandatory text provisions in the Cartagena trade issues is the relationship between precau- Protocol on Biosafety, and the Convention on Persistent tion and this direct requirement of scientific Organic Pesticides. The still controversial aspects of the evidence. For this purpose, the `precautionary "Precautionary Principle," when applied in the context of natural resources management, have been addressed in a major principle' (sometimes known as the `precaution- project--The Precautionary Principle Project--undertaken ary approach') embodies the concept (or in some by a consortium of NGOs, including IUCN, TRAFFIC, Flora cases the specific commitment)56 of action to and Fauna International, and Resource Africa. Its outputs and recommendations are available online at http://www.pprinciple. protect against the possibility of harm in situ- net/ . 18 Environment Department Papers Standards and Guidance from International Institutions scrutiny.57 WTO legal processes, however, are of- ing agricultural perspectives), and Scientific ten not replicable and may be difficult to predict. Committee on Problems of the Environment Hence, these issues constitute an uncertainty in (SCOPE) (representing the scientific coordina- addressing invasives legislation, rather than a tion and research perspective) agreed to an known obstacle for which a reliable practices can informal but highly effective partnership to pro- be applied. mote urgent and necessary action on invasives. Currently in a state of reorganisation and with Finally, it is important to mention here that a much broader group of partners, the GISP issues of "alien species" are not definitionally defines its mission as "to conserve biodiversity limited to international movement. Many criti- and sustain human livelihoods by minimizing cal pathways are not international, but involve the spread and impact of invasive alien spe- primarily `domestic' introductions (introduction cies." Its specific mandates are to "improve the of a new species from a different habitat within scientific basis for decision-making on invasive the same country.) Others involve unintentional species; develop capacities to employ early transboundary movement (individual actions warning and rapid assessment and response by non-commercial entities, spreading of species systems; enhance the ability to manage inva- along rivers or throughout landscapes that are sive species; reduce the economic impacts of transected by national boundaries, etc.) None invasive species and control methods; develop of these issues is directly addressed by interna- better risk assessment methods, and strengthen tional trade legislation. international agreements" through a combina- tion of public education, improved scientific International Co-operation and the Global understanding; and development of legal and Invasive Species Programme (GISP) institutional frameworks, codes of conduct and other tools for quantifying the impact of inva- In 1998, three major institutions, each provid- sive species.58 ing and representing a different perspective on the issue joined forces in a coordinated effort to increase knowledge and understanding of 57In this connection, it is worth noting that the CBD has invasive species issues and challenges and to sought observer status in the WTO for many years--so far not been unsuccessfully, despite the overwhelming identity of help identify potential policy solutions and membership between the two instruments. More recent efforts guide movement toward developing and imple- are focusing on finding a way for the CBD to be recognized menting them. In that year, IUCN-The World as an expert body for purposes of scientific analysis of biodiversity impacts under the SPS Agreement. Conservation Union, (representing conservation 58This information is available at http://www.gisp.org/. The issues); CAB International (CABI) (represent- GISP is based in Capetown, South Africa. Biodiversity Series 19 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species In preparing Parts III and IV of this report, the author has reviewed more than 90 legislative instruments.59 Al- though it is not possible to be completely comprehensive in this review, the documents reviewed include `hard law' (laws and regulations), and other instruments (guidelines and non-binding codes). In reviewing these documents, the author noted that an overwhelming majority were directed at particular purposes that predated the direct consideration of invasive species issues. Similarly, even in the case of laws that were adopted specifically to control invasiveness, it was immediately clear that the final adopted documents are the outcome of an internal negotiation process, reflecting the particular political and social balances within the country on several levels. Hence, the specific language (and sometimes the overall coverage) of each provi- sion cannot be presented as a model or primary recommendation. Given the object of this report (preparation for further work and technical assistance in development of invasives legislation), the author has attempted to provide citations to various legislative examples; however, those citations are not intended to recommend the cited laws or provisions, but only to provide a starting place for the development of further documents and/or the provision of direct technical assistance. These two Parts take the following approach-- - PART III identifies a variety of legislative tools that can be and/or have been used in invasives regulation, pro- viding some specialised information about the particular issues and problems to be addressed when utilising these tools. It does not list every possible legislative provision needed, but focuses on six key `challenge' areas which are more or less unique in how they are addressed in the context of invasive species control. - PART IV then describes the policy/legislative processes to be used in developing a framework utilising these tools. Its discussion is focused generally on developing countries--and governance and political issues unique to them. 59Legislation was selected based solely on the criteria that, as indexed, it addressed in a direct manner, some aspect of invasive species controls or concerns. (Rather than simply considering every law that could be located mentioning species or species control (agricultural seed sector regulation, animal welfare laws, and laws relating to zoos, for example, were not generally relevant.)) Hence, the author cannot claim that she has reviewed all relevant legislation, even in the countries listed. The source of nearly all national legislation reviewed for this report was the ECOLEX database--a single-source online library of national and international instruments. It can be accessed at www.ecolex.org. Many of the laws examined are listed in the bibliography, however as that list lengthened, it has not been completed. In any country, moreover, legislative analysis will require a more detailed inquiry into the role of species introduction legislation within the broader national legislative framework. This requires consideration of laws based on legislative objective and institutional structure, focusing on how the law supports, directs and mandates countries, government agencies/ officials and individuals to take action to and/or to address particular harms and pathways of invasive introduction. 20 Environment Department Papers 3 Tools of National Implementation Implementation of invasive species commit- recording) species introductions pending a final ments and shared priorities at the national level determination regarding invasiveness. The most is essential for all countries, including those frequently noted examples of countries that have not party to any of the relevant international adopted invasives legislation (for controlling the instruments. Studies at the national level show introduction or at least the transboundary im- that the problem of invasive species is virtu- portation62 of harmful invasive species) are, un- ally universal.60 In the face of these needs and fortunately all developed countries--Australia, mandates, however, regulatory measures on in- New Zealand, the United Kingdom, Denmark, vasives issues are relatively few in number, and and the United States. Although New Zealand's address or control only a small percentage of the legislation is also cited for its relatively compre- problems and issues that have been identified as hensive coverage.63 As noted below, however, needing current attention. 60Studies carried on in the EU, although recognized not to be A small number of commentators describe the exhaustive indicate that all countries are seriously affected by problem of invasive species as well understood alien species. Scalara, 2004 and manageable.61 The overwhelming majority 61See, for example, FAO has recently stated that "National phytosanitary authorities have a long experience in the of sources cited in this book, however, recognise assessment and management of biological risks related to that the recent explosion in extinctions of wild the introduction of organisms. They possess the knowledge species and impacts on agricultural and other of how to deal with risks posed by plant pests. This existing infrastructure and know-how could be utilized by activities caused by (intended and unintended) environmental authorities in their efforts to implement the alien species introductions is a cause for alarm, guiding principles of the CBD." FAO 2003. and an indication that present complacency on 62Although there is no difference in terms of `invasiveness,' the part of many authorities is an inappropriate there is a clear legal difference between introductions from outside of national customs boundaries, and those from another response. ecosystem in the same country. The European Union has become quite aware of this difference, because within recent The results of this review highlight the limited memory it has changed its rules regarding movement of goods (including living things) among European countries. Through impact of legislative responses to invasive spe- the Schengen treaty, which eliminated customs controls among cies even among the most developed countries. 13 of the EU Member States and Norway and Iceland, it has Few countries or regional groups have, as yet, allowed free transmission of alien species among countries, and is now seeking to address invasives issues through other found a way to effectively merge the scientific approaches (described below.) elements of invasives control with administra- 63Shine, et al (2002) at ¶4.3.4, cite New Zealand as closest tive tools to form effective system for addressing to providing an overarching framework, but note that it is not `unitary' (apparently `not embodied in one comprehensive the possibility that introduced species may law.') Citing NEW ZEALAND Hazardous Substances and become invasive, or for controlling (or even New Organisms Act of 1996, and Biosecurity Act of 1993. Biodiversity Series 21 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species the system which in many ways appears to offer · Regulatory empowerment (including com- the most promise to date is found in México--a pensation), developing country. · Funding, and There are many calls for guidance for national legislative and administrative systems for the · Transboundary cooperation. control of invasive species. A few attempts As noted above, each of these challenge areas have been made to respond to these requests, presents a combination of scientific and gov- focusing on academic (model law) approaches, ernance concerns. This paper will focus on the excerpts from various national legislative docu- latter. For each component, the paper describes ments related to, and restatements of general one or more existing/established approaches guidance from international decisions and to addressing the particular objective or need instruments. In terms of specific guidance on identified, and the general problems and ob- new legislative development processes, how- stacles related to making these approaches work. ever, these documents have not focused on the These discussions are preparatory for Part IV of most difficult and specific problems of invasives this paper, which examines how these specific legislation, but have instead devoted primary mechanisms can be integrated into the develop- attention to international policy concepts such ment of national and sub-regional legislation in as prevention, precaution, cost recovery, public developing countries. participation and access to information, along with risk analysis and EIA.64 Identification In keeping with this paper's objective of step- ping beyond work to date, and actually initiat- As noted in Part I, the primary challenge of ing the process of legislative and practical legal invasive species is knowing which species are implementation of invasive species control, this or may become invasive. It is typically impos- section examines a specific legislative tools and sible to predict with any reliability in advance approaches that have been proposed and/or whether a species will become invasive. As a applied in legislation of various countries. It consequence, the Global Strategy on Invasive will form the basis of Part IV, which looks at Species states "Every alien species needs to be how these tools might be utilised and integrated into relevant national legislation, particularly in 64See, e.g., Shine, et al., at 3.2­3.3--citing the Rio developing countries. Declaration (Principle 15), CBD (preamble as well as Art. 8h), SPS Agreement (Art. 5.7--cited "in a limited way" as This part is organised broadly into six sections, `advocat[ing], requir[ing] and allow[ing]' precaution), FAO representing the six primary challenges for inva- Code of Conduct for Responsible Fisheries, the Cartagena Protocol on Biosafety, the _arhus Convention on Public sive species legislation: Access to Information ..., and the Espoo Convention on Transboundary EIA. It is noted that most of these do not · Identification, specifically refer to invasive species, and many have no direct reference to biological issues and the transboundary movement of species or specimens. Other principles, not specifically · Regulatory control mentioned in this list include the "polluter pays principle" (Rio Declaration, 1992) and the concept of sustainable use (CBD · Oversight/monitoring, Arts. 1, 2, 6 and 10, as well as recently adopted Sustainable Use Principles in CBD-COP-7.) 22 Environment Department Papers Tools of National Implementation managed as if it is potentially invasive, until age: Which species must be addressed by inva- convincing evidence indicates that it presents no sive species controls? The minimum concern such threat."65 is canvassed above ­- the fact that legislators cannot make an advance determination that There are many factors that introduce risk into some categories of new or recently introduced that management process. In particular, the species should not be considered to be "invasive delay between introduction of a species and the species." Even if this (troublesome) term were first indication of its invasive impacts can be easy to define, it would not be possible to simply very long. This time period can be insidious, in know that a species is invasive without some that it may enable the species or its seeds, spores kind of formal consideration (discussed in the or impacts to spread very widely before national following sections.) Hence, it is necessary to processes for inventorying and monitoring bio- consider all introductions of species at some diversity can begin to recognise the serious na- level, to determine which are invasive, or alien, ture of the problem. By the time an appropriate or non-native, etc. reaction (eradication or control measures) can begin, effective remedial action will usually be complex, costly, and uncertain to fully achieve COVERAGE VS . REGULATION its objective. The substantive coverage issue is best addressed as two questions: Consequently, for lawmakers, the `identifica- tion challenge' is to develop laws that merge · What do you want to regulate (control)? the country's highest reasonable level of scien- and; tific application with a realistic analysis of the risks and benefits of proposed introductions, · How can you identify it for regulatory pur- so that invasive species controls maximise poses? protection for biological diversity and biologi- The first question is rather easily answered-- cally-related industries (agriculture, forestry, most countries want to regulate/control the tourism, etc.) without unreasonably restricting introduction of harmful or potentially harmful the achievement of essential national objec- species. The second question, however reflects a tives in other areas (food security, forestry, greater difficulty, as the only way to identify the etc.) harmful introductions is to be aware of all intro- After a brief discussion of the manner in which ductions. Legislatively, this raises two primary the identification issue relates to the question of points: the overall scope of the law,66 this section con- siders three basic approaches to identification: Lists, evaluative descriptions, and scientific models. 65McNeely et al. 2001. 66In this connection, the author notes that it is best to develop legislation based on an overall view of the legislative objective. In general--Scope of Species/Specimens Covered The final decisions regarding `scope' and coverage of the legislation are best based on the analysis of the context of the legislation as it developed. As such, although they are typically The first step in the identification process is that found at the beginning of legislation, they are typically among of categorizing the overarching limits on cover- the last elements written. Biodiversity Series 23 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species 1. Detailed efforts to define "invasive," 67 "alien," "native" and similar terms, while While most laws that are styled or indexed as "invasive species" legislation focus on the definition process, many potentially useful in the legislation, often other relevant laws (seed laws, agricultural development laws, distract the legislative process from the ballast water controls, etc.) focus on pathways without specific primary work of the legal system. It may mention of particular species characteristics. (See, e.g., the Ballast Water Convention, described in above.) be more appropriate to focus instead on 68Legislative specialists can often be distinguished from non- what kinds of human action are controlled, specialist lawyers by their approach to the use of definitions. and assume that all biological specimens It is generally inappropriate to begin the drafting task with a lengthy discussion of either scope, formal statement of involved in such actions must be screened legislative objectives, or definitions. Rather, it is usually in some way to determine whether they more productive to develop the general provisions based on must meet requirements under invasive- working concepts, and identify the need for and configuration of definitions, scoping limitations, and final statements of ness-oriented species laws. For example, it objectives from the text, designing these tools to best serve the may be better to focus primary definitions needs of the draft law. (This process often can limit the number of useless provisions and definitions--a primary objective of a on "introductions," and "activities leading good legislative draftsman.) to introductions" (e.g., importing, market- 69Although there may be an effective distinction, the author ing, etc.) and leave the question of whether does not see a difference between (i) defining "alien species" the particular specimen should be regulated (and applying the law or some provision to species that meet such definition) and (ii) identifying "native species" (and to the regulatory mechanisms applied stating that they are exempt from the law or some particular when an introduction is proposed (parts requirements of it.) Hence this discussion will not detail the 2, 3, and 4 below.)67 In a number of laws various choices of term. 70The terminology may vary including a variety of words examined for this report, for example, there and phrases expressing foreign-ness, such as `native,' `alien,' is no specific legislative distinction between `non-indigenous,' and `exotic,' as well as terms expressing `non-native species,' and `invasive species.' invasiveness, including `harmful,' `pest,' and `weed,' as well as `invasive.'The choice among these terms usually makes In essence, these provisions assume that virtually no difference. What is essential is to define and longer term strategic analysis relating to in- use the terms in a consistent way appropriate to the level of vasive species can only be developed out of legislation being developed (see below.) In this connection, it is probably advisable, at the national level to coin and use a term a generic view that considers all non-native that is different from the international terminology. species. This is standard advice given in most processes of legislative implementation of international agreements. It is more 2. If the legislative context requires68 a essential in the invasives context, however, as a result of a long (and now notorious) discussion in CBD SBSTTA-6 over definition of `invasive species' or `native the choice between "alien invasive species" or "invasive alien species'69--whether to distinguish covered species" in the COP decision. As the order of adjectives makes species from non-covered species,70 or to no substantive difference (a "brown two-story house" is no different from a "two-story brown house"), this discussion was create varying sub-categories of covered completely nonsensical. Its primary impact was to impress species. In this connection, a variety of on many delegates the idea that CBD terminology could be fraught with potential interpretation problems, in court or approaches may be relevant, including-- administrative contexts. 71See, e.g., UNITED STATES (Illinois) Exotic Weed Act, 525 · all species are alien that are not found on ILCS 10/2 (` "Exotic weeds" are plants not native to North the continent or in the country as of the American that, when planted either spread vegetatively or adoption date of the legislation;71 naturalise and degrade natural communities, reduce the value of fish and wildlife habitat, or threaten an Illinois endangered or threatened species'); GERMANY (federal) Nature · all species are native (or at least un- Conservation Act of 1987 (`native species' includes both regulated), if they existed within the those which have existed or evolved in Germany and any alien species which has naturalised in the past). 24 Environment Department Papers Tools of National Implementation particular target ecosystem72 or other A number of countries have also adopted spe- geographically defined area73 as of a par- cies-specific legislation individually addressing ticular (earlier) date; or particular alien species of concern.75 Although a rather unsatisfactory method of dealing with the · species are native only if they acquired breadth of the alien species problems facing most their individual characteristics in the countries (given that invasives problems are often area (ecosystem, district, country, region, either irreversible or extremely costly by the time continent). a particular invasion is known and legislation on in enacted), such measures may be particularly The choice of terminology and the contents of useful where a known invasives problem is definitions used in legislation are completely sufficiently harmful and has reached the urgent individual, based on legislative needs. How- stage in which more general measures may not be ever, it also indicates the level of risk that the strong or high-profile enough to provide any help. particular legislative system is willing to accept. If a law generally enables introductions (with- out government permit or other oversight) GMOS AND NVASIVES I LAW of any species native to the continent, this The relationship between invasives controls indicates that the legislators have confidence in and genetically modified organisms (GMOs)76 the ability of government agencies to monitor, raises concerns in a variety of ways. Operation- control and manage invasives problems on a ally, there is no particular reason to separate reactive (post-introduction) basis. The decision GMOs from other species when considering to control species more narrowly suggests a invasiveness issues, and many countries take preference for addressing these problems pro- this approach.77 GMOs are, by nature, alien spectively. 72 In many situations, a definition's primary See, e.g., UNITED STATES Executive Order 13112 of February 3, 1999. legislative role may be to empower officials to 73See, e.g., BAHAMAS, National Biosafety Strategy, exclude species that may cause environmental Draft, 2005; NEW ZEALAND Hazardous Substances and harm. In that case, it might be appropriate to New Organisms Act of 1996, and Biosecurity Act of 1993; CANADA Fish and Wildlife Act, 2004, c.12, s.1, Chapter F- focus on the particular ecosystem involved, and 14.1 (defining `exotic fish' and `exotic wildlife' to include any on species that have originated in that place that are `not indigenous to the Province' in which the species is or been present for an extremely long time74 to be introduced, for wildlife, it also the species must be `in its natural habitat, usually wild by nature'.). Conversely, where the legal focus is on control 74See Serra, 2003 (present-day efforts initiated to eliminate a rather than prevention, the listing process may pest introduced into Majorca and Minorca in Roman times.) be focused on a presence within the continent, 75See, e.g., UNITED STATES Non-Indigenous Aquatic and based on a recent date (such as the date Nuisance Prevention and Control Act of 1990 (preventive measures against further introduction of the Zebra mussel of adoption of the legislation). Existing instru- (Dreissena polymorpha.) ments and definitions provide little direct as- 76Also known in the Cartagena Protocol on Biosafety and sistance, and are an inappropriate guide, given some national law implementing that instrument as "living modified organisms" or "LMOs." Given that there is no the distortions that can arise when adapting discernable difference between the two terms, the author will new or model legislation to particular national use "GMO," because it is the more commonly used of the two. (ecological, economic, social and other) situa- 77See, e.g., BAHAMAS, National Biosafety Strategy, Draft, tions. 2005; NEW ZEALAND Hazardous Substances and New Organisms Act of 1996, and Biosecurity Act of 1993 Biodiversity Series 25 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species everywhere. This suggests a clear need to ad- issue which only partly overlaps with invasive dress their potential invasiveness, given that an species issues. introduced natural variety may be invasive in an ecosystem that already contains a related va- Typically, laws governing invasive species focus riety. An altered variety may also be potentially on species that are intentionally introduced or invasive, even when introduced in an ecosystem transported, and those which the human actor in which the recipient, parent or donor organism knows or should know might be included in is native.78 In some cases, moreover, legislation his shipment or other activity. By contrast, most controlling GMO introductions addresses very movement of microbes, including intestinal and similar concerns to invasives legislation. blood parasites and other life forms, is not only unintentional, but may also in most cases be On the other hand, however, the minimum unknowable to the human whose action causes requirement of the Cartagena Protocol, for all the introduction or transportation. GMOs requires various processes (licensing, risk assessment, etc.) only on the first interna- Responsibility with regard to alien species tional (cross-border) entry/introduction of the a introductions, however, is generally based on new species in the recipient country.79 Thereaf- existing legal concepts of liability and legal duty. ter, the variety may be brought into the country As a legal matter, a person is not held respon- and marketed without additional permission. sible for something he could not have known Although the Protocol allows countries to about, unless his actions can be legally defined enact stricter legislation, it does not specifically as "ultrahazardous activities"--a specialised discuss stricter options. Given the similarity legal term, referring to activities creating a risk between GMOs and invasives for regulatory of harm so great that the actor is liable for all purposes, it may be appropriate to find ways harms caused, even if he complied with normal to integrate the two issues, creating similar standards of risk protection. Alien species intro- mechanisms and triggers, rather than trying to ductions are not legally considered to be either find some definitional divider that allows a dif- `known hazardous' or `ultrahazardous,' except ferent standard for GMOs than for other alien where the particular species is known (before species. At a minimum, it will be necessary to introduction) to be uncontrollably invasive or determine whether introduced GMOs will be seriously harmful in the recipient ecosystem, or required to comply with both sets of require- where the introducer did not take reasonable ments,80 and if so, how the two systems will interrelate. 78In fact, it is usually preferred, in order to avoid interbreeding with native species, that GMOs should not be introduced MICROORGANISMS in areas containing wild relatives of the recipient or parent AND NVASIVES I LAWS species. MÉXICO's CONABIO operational procedures. One issue that sometimes complicates discus- 79This minimalist approach is also mentioned in the CBD sions of invasive species legislation is the ques- Guiding Principles. tion of `microbial alien species.' The movement 80Although the multiplicity of governmental approvals is frequently bemoaned by businesses intervening in international of microorganisms, which are generally not vis- negotiations, the author is aware of no country in which any ible or detectable to non-laboratory inspection, is business or other commercial activity is only subject to a single undoubtedly a serious problem. From a practical unified permit system. The object with regard to GMO law and invasives law will be to ensure that there is no needless and operational perspective, however, it is an duplication in the substantive requirements of the two laws. 26 Environment Department Papers Tools of National Implementation measures to protect against known risks. Hence, not consider phytosanitary law in detail, con- an introducer cannot usually be held responsible sidering `invasives' to be a separate, integrated for introducing a microorganism unless issue. Numerous sources, however, consider in- vasives regulations as health and sanitary laws, (1) he intentionally introduced the microor- and assume that phytosanitary mechanisms will ganism directly (e.g., for nitrogen fixing, satisfy the needs of invasives control.81 These as bioremediation, in containment that is documents, although not covering the majority breached, etc.); of the elements required in order to address invasives issues, provide a good basis on which (2) he knew that the microorganism was pres- to build an understanding of the relationship ent on the specimens he introduced; between the two concepts. (3) he introduced a species that is known to frequently be infected by, or a carrier of, the RELEVANCE OF THE COVERAGE microorganism; CONCEPT TO DENTIFICATION I Beyond the foregoing legal analysis, the cov- (4) he introduced a species whose known erage of invasives law must be determined characteristics suggest that the introduction operationally. The primary coverage approach is `ultrahazardous'--so that he is liable for described above requires that all proposed ac- all harms resulting from the introduction, tions of non-native species (however defined) whether knowable or not; or must be evaluated, to determine whether the (5) there is a complete lack of data concerning particular species the species being introduced or its probable · may never be introduced (outside contain- impacts, but he introduced it anyway. ment); There is, moreover a basic difference in approach · may be introduced subject to conditions and between phytosanitary and invasives legislation. controls; or Typically, the implementation processes relating to invasives are directed at preventing intention- · may be introduced without controls. al introductions and, where possible, uninten- tional species introductions, at the `macro' level. This determination may be made on the basis That is, it attempts to filter introductions that of law, regulation or scientific models. The fol- are known or knowable. Operationally, the in- vasives provisions usually begin from a consid- 81See, e.g., Writings on and under the International Plant eration of the animal or plant itself, and address Protection Convention, as well as International Standards associated risks (hitchhikers and disease) only as for Phytosanitary Measures (ISPMs) and systems developed through the IPPC framework, and Regional Plant Protection an adjunct to that initial approach. Health and Organizations (RPPOs). See also, German Federal Ministry sanitary/phytosanitary laws, by contrast, begin for Consumer Protection, Food & Agriculture, Report on the workshop Invasive Alien Species and the International from the question of potential disease vectors, Plant Protection Convention: An expert consultation of including parasites and other hitchhikers, and phytosanitary services and environmental protection agencies apply those considerations. These two legislative (22­26 September 2003). As a result of this workshop, the International Plant Health Risk Assessment Network has been objectives are typically separate, while closely formed to develop methods to harmonize the implementation coordinated with one another. This paper does of phytosanitary pest risk analysis. Biodiversity Series 27 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species lowing three sections discuss the primary tools To partially address this problem, listing available for meeting this `identification chal- processes frequently also include species that lenge,' and categorising species. These processes have been publicised internationally as being are relevant beyond the question of introduction, particularly harmful.84 As noted above, although as they may determine the extent of government it is not possible to identify invasiveness in and private obligations to eradicate infestations, advance, some species have been found to be so take remedial actions, and engage in other inva- aggressive that they can generally be expected to sives protection measures. prove invasive in most habitats into which they are introduced.85 Lists The use of black lists, and particularly the inclu- Operationally, the adoption of species lists is sion of generically identified species on the list among the simplest mechanisms for identifying may, of course, result both in over-coverage species that should be subject to controls or other (listing species that would not be invasive in the evaluative processes. So long as the implement- particular ecosystems in which they might be ing officials are able to identify listed species (in applications, in border control stations, in the field or elsewhere), they can apply whatever 82Numerous black-list laws exist, including, for example regulatory measures are specified for listed AUSTRALIA (Commonwealth), Environmental Protection and Biodiversity Conservation Act 1999, § 301A (which species. List-based approaches also have limita- authorises, but apparently does not mandate, the establishment tions, however, primarily relating to the reactive and maintenance of a list of non-native species that threaten nature of list creation and list alteration and the biodiversity in the Australian jurisdiction); COLOMBIA Por el cual se reglamenta el Código Nacional de los Recursos inflexibility often applied in laws using list mech- Naturales Renovables y de Protección al Medio Ambiente y anisms. As a result, over time, three primary list- la [Ley 23 de 1973] en materia de fauna Silvestre (Decreto based approaches have developed--the so-called No.1608) 31 Jul. 1978 (blacklists as one part of a broader approach); FRANCE Loi en eu douce et à la gestion des "black lists," "white lists," and "grey lists." resources piscicoles (Loi n° 64­512) 29 Jun. 1984 (sectoral law blacklisting aquatic species.) 83For example, the EUROPEAN UNION (in Council BLACK LISTS Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade `Black list' is the shorthand term generally therein (Official Journal L 061 pp. 0001­0069) 03 Mar. 1997, applied to statutory (or statutorily mandated) which merges invasive species concerns with more general lists of `known' invasives and harmful species. restrictions on species trade under CITES), lists `species in relation to which it has been established that the introduction Such lists typically include species that have of live specimens into the natural habitat of the Community already been identified as harmful within the would constitute an ecological threat to wild species of fauna and flora indigenous to the Community' (emphasis added.) ecosystem (or the continent, region, country, It is thus necessary to formally establish invasiveness within or sub-national jurisdiction (state, province or the EU in order to apply this Regulation's limitations. See districts), depending on how the regulation is also, EUROPEAN UNION Commission Regulation (EC) No 349/2003 of 25 February 2003 suspending the introduction into ordered.)82 As such, a black list is generally a the Community of specimens of certain species of wild fauna reactive mechanism--that is, species are only and flora (Official Journal L 51) 26 Feb. 2003. listed after a factual determination that they are 84See, e.g., "100 of the World's Worst Alien Invasive Species" invasive or harmful.83 Usually, by the time such (pamphlet produced by the IUCN Invasive Species Specialist Group, available English and Spanish at http://www.issg.org/ ) a determination can be made, serious harm may 85Weber, 2003. already have occurred. 28 Environment Department Papers Tools of National Implementation introduced) and under-coverage (omitting many particular species must undergo the permitting species that will ultimate prove to be invasive.) process.89 In essence, once the first introduction However, pending the development of more of a species has been allowed, it is effectively dependable scientific criteria, listing of these spe- added to the white list. This can be seen as a cies may be the most effective method available standard minimum approach, in that it would to address a significant component of high-base- mean that the government will be called to make line invasives risk in a regulatorily simple way. a decision on each species only once. In effect, this approach concludes that the administrative process of the first introduction is conclusive WHITE LISTS AND BIODIVERSITY INVENTORIES proof of the safety of all future introductions, The use of white lists represents the opposite regardless of the possibility that later introduc- list-based approach--that is, to define species tions will involve different ecosystems, or that whose introduction is predetermined to be the first experiences might disclose character- acceptable. This approach is integrally con- istics that will alter the agency's evaluation of nected to one of the primary (but manifestly subsequent applications. underutilised) operational tools created under the Convention on Biological Diversity--the biodiversity inventory and database.86 Both AMALGAMATING LIST APPROACHES mechanisms focus on species that are already in- Inevitably, initial simplified list approaches have troduced in relevant ecosystems, and are known been amalgamated, typically by either of two or believed to be non-harmful. combination approaches: White lists87 and biodiversity inventory data- bases88 have a primary orientation of attempting 86CBD, Article 7. The design of the CBD appears to revolve to ensure that invasives regulation do not un- around these inventory and database requirements as a mechanism that underlies and effectuates the remainder of the duly interfere with commercial transactions and Articles. Young, T. 1993. Relatively few countries, however, development. To be effective in this endeavour, have developed or utilized their inventories in this way. Among the best examples of this process are found in México where white lists must be relatively comprehensive, comprehensive databaseshave been developed that can be of but must also be based on a scientific and field use in such evaluation. A few other countries have similar evaluation, given the fact that some species may databases, in varying states of development (currently less comprehensive.) See, e.g.,MÉXICO Comisión Nacional para have spread without specific notice, and that the el Conocimiento y Uso de Biodiversidad (CONABIO) and passage of time may disclose invasive character- COSTA RICA Instituto Nacional de Biodiversidad (InBio); istics in species formerly thought benign. and CHILE Reglamento de Internación de Especies de Primera Importación (Núm. 730) 28 Nov 1995, at Art. 7. 87BRAZIL Portaria n° 83-N (26 Sept 1991); ESTONIA Critical questions that should be (but are not Approval of Legal Acts Established Pursuant to the Seed and always) answered in legislation relate to the Plant Propagation Material Act and the Forest Act (Regulation re-evaluation of listings, and particularly to the No. 66/1999) 7 July 1999 (White list for commercial introduction of forest species); CHILE Establece Nomina De manner in which new species are added to the Especies Hidrobiologicas Vivas De Importacion Autorizada list. In this connection, a few countries have built (Núm. 531) 05 Jun 1992. their overall systems for controlling new species 88COSTA RICA Reglamento a Ley de Conservación de la Vida Silvestre (Decreto No. 26435 MINAE) 1 Oct. 1997 (Cap. VI is introduction on the basis of the Cartagena Proto- the database.) col as a model. Specifically, they have provided 89See, e.g., TAIWAN Wildlife Conservation Act of 1989 as that only the first international introduction of a amended, at § 27. Compare, Cartagena Protocol on Biosafety. Biodiversity Series 29 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species · A specific black list whose members are all to "processes and categories of activities which subject to strict restrictions, and another spe- have or are likely to have significant adverse cific `grey' list, whose members are all sub- impacts on the conservation and sustainable use ject to a more flexible list of requirements, of biological diversity, and monitor their effects with all species not on either list considered through sampling and other techniques."93 to be on the `white list' of freely introducible species;90 In essence, this approach recognises certain pathways that can have a broader impact, · A combination of black list (strictly requiring special attention and proof prior to restricted or forbidden) and white list (al- introduction. Like other list approaches, this is lowed with minimal formalities) and an a broad-brush tool, but can help in prioritising interim `grey list' for which more detailed the work of government agencies, as well as evaluation (see sections 3 and 4 below) is focusing efforts on particular pathways requir- required.91 Typically, the law will specify ing attention. For example, numerous studies which treatment will be accorded species have shown that ornamental species are the that are not yet listed. largest pool from which invasive species are derived, so that importation for these purposes In many cases, the lists involved are quite bears a relatively high risk of invasiveness.94 Par- short, often because they represent a `legislative ticularly as countries try to unify or regularise heritage'--that is, a list that was generated and adopted initially for a narrower purpose (agri- 90BELGIUM (Walloon) Arrêté de l'Exécutif réglant la mise cultural weed control, aquatic channel clearing, en liberté dans la nature des espèces... (defining the group etc.) and have more recently been identified as of species to be controlled in terms of the fact that they the national programme on invasive species (or are not contained on any of three categories of lists: lists of game (hunting law), lists of fish and shellfish, and other a part thereof). lists of indigenous species compiled by appropriate (nature conservation) authorities.) Lists may be used in a variety of ways. A lead- 91COLOMBIA Por el cual se reglamenta el Código Nacional ing country in the development of controls on de los Recursos Naturales Renovables y de Protección al Medio Ambiente y la [Ley 23 de 1973] en materia de fauna species introductions, New Zealand, specifically Silvestre (Decreto No.1608) 31 Jul. 1978, (Introduced species provides an expedited procedure for approval of are Title III, procedures are VI); CHILE Determina Especies applications where the alien species is not listed Exoticas Que Pueden Perturbar El Equilibrio Ecologico Y La Conservacion Del Patrimonio Ambiental (Resolución No. as an `unwanted organism,' subject to other 863 exenta) 26 Mar. 1999; and Establece Nomina De Especies specific approvals.92 Hidrobiologicas Vivas De Importacion Autorizada (Núm. 531) 05 Jun 1992; ICELAND The Nature Conservation Act (No. 44/1999) 22 March 1999, at Art. 41 (authorising the use of LISTING PATHWAYS white/black lists, but not requiring it.) 92NEW ZEALAND Hazardous substance and New Organisms One option that has been suggested but not Act of 1996, at § 35. In addition to absence from the list, clearly enunciated in the reviewed legislation is the agency must be able to find that it is `highly improbable' that the species will become invasive (form a self-sustaining the listing of pathways, as a means of identify- population, displace a `valued species,' damage habitats, ing particular kinds of introductions that should communicate disease, or become parasitic.) be given particular kinds of attention. This 93CBD, Article 7(c). approach, too, has a basis in the CBD, whose 94Documented in Weber, E., 2003; Groves, 1998 (statistics indicating 10 new invasives in Australia each year more than inventory requirements include the requirement 65% of which enter the country as `garden plants.') 30 Environment Department Papers Tools of National Implementation their invasives-related legislative processes, this · Significant habitat deterioration approach may be useful to create a policy basis for deciding which risks to accept subject to · Significant adverse effects on human health oversight (risks related to important objectives and safety, such as food security) and which to prevent or · Significant adverse effect on the countries to control more rigorously (commercial use non- biological and genetic diversity native species, that might use native or white list species.) · The importation of disease or parasites. Evaluative Standards Despite their regulatory detail, the criteria for deciding permit/introduction applications are Complex regulatory permitting provisions in decidedly imprecise, calling for refusal if the many different contexts are typically founded on government feels that the introduction might legislative provisions specifying the regulatory alter ecological balance, affect the economy or limitations, objectives, information provision modify the fulfilment of legislative objectives.96 and other requirements that must be met by the In some cases, it is possible to adopt more pre- applicant and the government, respectively, in cise standards and measurements in regulations, order for a permit to be granted. These stan- standards or other documents, to enable fair and dards of evaluation also provide a basis for the replicable decision-making processes, presum- adoption of specific conditions and requirements ably relying in part on public and expert input under the permits, and for determining which from outside the governmental sector. species should be covered, and how they should be monitored.95 Other sources provide only very general legisla- tive guidance on the responsibility issue and In the context of invasives, it is reasonable to in this way may effectively place the burden of expect that this kind of approach will eventually predicting invasiveness on the introducer. For be developed for most commercial pathways. example, the EC's `Wild Birds Directive' requires Some countries have already adopted this Member States to `see that any introduction of approach specifically to address species intro- species of bird which do [sic] not occur naturally duction issues, with national legislation that in the wild state in [their] territory does not identifies specific concepts and objectives that prejudice the local flora and fauna.'97 Similar must be met for each introduction. One of the most frequently cited, New Zealand's `biosecu- 95CUBA Regulaciones sobre la Diversidad Biológica (Gaceta rity' approach, includes a long list of objectives Oficiál 631/1996) 28 Nov. 1996 (Cap. III is invasives; Art 15. sets criteria for analysis.)) Internationally recognized and issues to be `taken into account,' including examples of this process are found in the CITES processes for the `life supporting capacity of air, water and the granting of import and export permits, its standards for determining the significance of the effects of wild harvest and soil ecosystems,' as well as issues of economic international trade on the species, and its criteria the listing of and social wellbeing. It identifies several specific species. These standards and criteria have been adapted by each situations in which no introduction may be al- of CITES's member countries and adopted in regulatory form, as a primary requirement under that Convention. lowed, including actions which would cause 96This sampling of generic provisions is taken from ARGENTINA Ley 22421/1981, cited in Shine, et al at 57. · Significant displacement of a native species 97EUROPEAN UNION Directive on the conservation of wild from its natural habitat, birds, Directive 79/409/EC, Art. 11. Biodiversity Series 31 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species provisions are found in the `Habitats Directive,' Box 2: Weed Risk Assessment (Australia) under which `the deliberate introduction into the wild of any species which is not native to The WRA operates by adding new processes to [the] territory [of a Member State] is regulated so the procedures for approval of new species intro- as not to prejudice natural habitats within their ductions, after it is determined that the species in question is not contained on either of the `white natural range or the wild native fauna and flora lists' currently in use in Australia. and, if they consider it necessary, prohibit such introduction.'98 Little practical discussion of the This process is couched in the form of a question- naire containing a series of 49 questions about the means by which such a prohibition might be le- new plant. Each question must be answered with gally and practically created and implemented is available documented scientific evidence. Some of possible in an EC document, and none is found the questions include the following: in these Directives, apart from strong require- · does the plant form dense thickets? ments that the issue be included in environmen- tal impact assessment. · is it spread by animals? · is it a weed (as defined) in any other place in Scientific Processes and Formal Standards which it exists or has been introduced? for Risk Evaluation While most of the questions focus on presumed In a few countries, the nascent science of predict- indicators of weediness, some relate to indicators of low risk.Apoint-based scoring system is applied ing invasiveness is being used in the creation based on the answers to each question (point scores and application of formal, detailed scientific increase for weediness, and reduced for answers analytical systems for determining whether a that indicate low risk.) Scoring also considers the strength of the evidence provided in each case. species should be allowed.99 One such system, Plants may be introduced if they score 0 or less. A the Weed Risk Assessment or WRA, has been score 5 or higher will result in denial. formally recognised for use by the Australian Those scoring between 1 and 4 it must be evalu- Quarantine and Inspection Service, as an adjunct ated further, typically by undertaking additional to its black lists process (see Box 2). This system research to generate more information. If this re- is designed to impose scientific rigor, identify- consideration results in a changed score, the plant ing the data to be reviewed in the application will be accepted or banned accordingly. If the score remains in the 1­4 range, further evaluation will be process, and creating a weighted mechanism for required. This process will include a cost­benefit that review. analysis rather than a precautionary approach. The use of these systems evidences the disjunc- This system is notable because it is felt to target environmental weeds (species that can become ture between legislative provisions and current invasive and thereby harm the environment) as approaches to scientific analysis. The WRA is, much as economic weeds (species that can have a to some extent, based on the assumption that negative impact on agriculture or other commercial activities, and increase costs.) It has been utilised officially in New Zealand and has attracted interest from other countries.100 98EUROPEAN UNION Council Directive on the conservation of natural habitats and wild fauna and flora, Council Directive (92/43/EEC) at Art. 22 99AUSTRALIA Australian Weeds Committee, 1994, Screening plants for weediness: A procedure for assessing species proposed for importation into Australia. 100Low, T., 2006 32 Environment Department Papers Tools of National Implementation science can predict invasiveness, an assumption The system is strongly `precautionary' in that it that is, as yet, not entirely correct. For example, assumes that a species introduction should not one typical `rule' that is frequently used as a be allowed within a specified range of ecosys- criteria for determining the invasive potential tems in which its wild relatives are found. As of a plant species has been the breadth of the a consequence of this approach, an applicant's species' native ecosystem. If a species inhabits a chances of success improves dramatically large tract in its area of origin, it is thought to be according to the level of specificity of his ap- "pre-adapted to a wide range of abiotic factors" plication. If the applicant can identify very and thus able to invade more easily.101 This `rule' exactly the place (farm, city, district) in which has been demonstrably broken, however, by a the species will be introduced, the analysis can number of highly aggressive plants, which have be very specific. Consequently, the final decision been introduced in various places on the basis of can be simpler, the chances of a positive deci- narrow breadth of their `home' ecosystem and sion will increase, and fewer restrictions will which have later proven invasive.102 be imposed--although the introducer will have responsibilities to ensure that the species will In many countries and sectors, moreover, deter- not spread or be transferred beyond this range. minations related to species introductions are not Where the application proposes introductions localised or based on the particular ecosystem, throughout the country or a particular state, so that each approval of an introduction will be the scientific analysis is more likely to discern a basis for introducing the species anywhere in potential risks of invasiveness (particularly the country. Even where alienness is recognised interbreeding issues), thereby increasing the to apply at the ecosystem level, decision-making chance of denial of the application. may be national or provincial.103 Few countries regulate internal movement of species, usually at One interesting factor can be discerned by a regional, rather than ecosystem level. comparing standard approaches to alien species introductions to the models used in assessing In a small number of cases, however, scientific possible GMO introductions--the level of simi- analytical proposals address the fact that the larity to local species. In numerous laws relating determination of invasiveness is based on facts that must be determined at a very localised 101 level. México, for example, notes that invasive- Wittenberg, 2003. 102One recently noted European example is Giant Hogweed ness and other impacts of species introductions (Heracleum mantegazzianum)--an ornamental that has been can only be determined `on a very narrow case- widely introduced throughout from the Caucasus over the past by-case basis.'104 México's system focuses on 200 years. 103 the gathering of information from a substantial UNITED STATES The Lacey Act (regulating transfer between States, but not addressing smaller scale.) systematic database including detailed scientific 104Interview with Francisca Acevedo, Comisión Nacional resources on both domestic and foreign species, para el Conocimiento y Uso de Biodiversidad (CONABIO). and a detailed database containing location- CONABIO's detailed information collation system is utilised in all introductions, with special attention to GMOs. Similar specific information from the country's national approaches are authorised in other countries, including biodiversity inventory. Through this system, the FRANCE Décret fixant les conditions d'autorisation deciding body can analyse proposed introduc- d'introduction dans les eaux visées à l'article 413 du code rural de poissons, de crustacés et de grenouilles appartenant à des tions on the basis of the location in which it will espèces qui n'y sont pas représentées (Décret n° 85­1307) 9 be introduced. Dec. 1985. Biodiversity Series 33 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species to alien species introductions and reintroduc- very many situations in which the introduction tions, a priority is given to species that are near of living specimens, seeds, and other biological relatives of indigenous species and species that material is not only to be permitted, but actively are already naturalised in the area. These pre- encouraged for a wide variety of social, eco- sumptions are based on the belief that ecological nomic and even environmental purposes. relationships will be less impacted by a close relative of a local species, than by a completely Such systems have a strong commercial rel- different species. By contrast, scientific analysis evance, suggesting that legislation must provide of GMO introductions frequently proscribes a basis for determining which species are cov- all introduction of GM species that are closely ered, and must categorically exempt any species related to native species, particularly where the for which no permit will ever be required. This GMO's wild relatives (relatives of the parent or kind of specificity is difficult, however, for legis- recipient species) in the region.105 lators who realise that their words will later be applied to situations that were never considered at the time of drafting the legislation. Conse- Regulatory Control Measures quently, these systems nearly always provide The second challenge of invasives legislation a wide range of options to the decision-maker is the process of regulation/control of species and a relatively strong level of discretion, to introductions based on their potential to harm enable proper response to particular and generic or impact other species and the environment. situations in which the introduction of living The precise wording and application of tools specimens, seeds, and other biological material for addressing this challenge are to some extent is not only to be permitted, but actively encour- integrated with the identification criteria that are aged for a wide variety of social, economic and selected and applied. other purposes. This basic fact is often a source of confusion and Primary Prohibitive/Restrictive Language difficulty in developing invasives legislation. It Typically, statutory resource management often invokes legislative fears that official discre- programmes are permission-based--that is, tion may obviate the value of invasives control they focus on a system of controlled approvals generally. However, concerns about excessive to ensure that use of resources is sustainable. regulatory flexibility can usually be addressed by As its primary legal basis, however, such a separate provisions addressing each of the vari- system begins with a generic prohibition or ous kinds of introduction situations (an option restriction--i.e., `no person may introduce XXX that is encouraged by this paper). In this way, without specific written permission...' Despite each kind of decision (each sector, biome and frequently stated preference for `prevention' of purpose) relating to an introduction can be specif- the introduction of aliens (as the surest method ically regulated and subject to clear and review- of preventing invasives from taking hold) rather than simply controlling those introductions,106 it 105MÉXICO, for example, as a Vavilov `centre of origin' of is not possible to simply prohibit the introduc- maize, places strict, criminal restrictions on all attempts to tion of non-native species. Permission systems bring GM maize into the country, even for contained research. 106Such preferences are most obvious in the CBD Guiding must both address the need to minimise the risk Principles and IUCN Guidelines, but also appear in a number of harmful species, and recognise that there are of national laws and strategies. 34 Environment Department Papers Tools of National Implementation able legal standards, with an appropriate level of dating anything other than human action. How- overseen discretion, without undoing more rigid ever, legislation may address conditions that are controls that are necessary in other contexts. not caused by human actions (or that cannot be proven to have been caused by human actions) In the context of species introductions, however, where, for example, the regulation addresses somewhat unique issues arise. The basic prohi- governmental or private mandates to take ac- bitions necessary to control invasiveness may be tion to address, minimise or protect against the phrased in two ways. On one hand, such a pro- condition. Hence, as with most other aspects of hibition is simplest to adopt (but most difficult law, the nature of `introduction' under invasives to apply) when it is phrased in terms of the un- legislation depends on the nature of the respon- restricted/uncontained introduction of invasive sibilities and human actions addressed within or harmful species which are alien to the ecosys- that legislation. Typically, invasives law either tem.107 No right thinking official would oppose a assumes or defines the concept of introduction, provision prohibiting such introductions. to rest on human actions and pathways.109 Per- haps the most important aspect of this concept However, the regulation of such a prohibition relates to whether the human causation factor is difficult. It would require that governmen- is direct or indirect--whether human actions tal officials and private actors must be able to would be considered to be `introduction' and recognise objectively separate qualities about therefore subject to regulation where the action, each species that might be introduced. Namely, for example, was to eliminate a predator or to know whether that species was `invasive' or other ecosystem component causing a formerly `harmful,' whether it is `alien' to the ecosystem naturally controlled species to become invasive. into which it will be introduced, and whether the measures taken for oversight of that intro- duction constitute `containment' for these pur- 107See, e.g., CHILE Establece Normas De Ingreso De Material poses. At a minimum, such an approach must be Biologico Y Deroga Resoluciones Que Indica, 24 Sept. based on the adoption of specific and detailed 2001 (prohibiting the introduction of harmful invasives in a black lists, their broad publicisation, and the variety of forms (`Insecta, Arachnida, Diplopoda, Chilopoda, Pauropoda y Crustacea, moluscos terrestres o dulceacuícolas, development of specific administrative capacity invertebrados carentes de apéndices, tales como Nematoda y to enforce them. Anellida, plantas nocivas, hongos, bacterias, virus, viroides, micoplasmas o cualquier otra forma de organismo que Where not willing to predetermine which en forma directa o indirecta pueda dañar las plantas o el medioambiente') without appropriate permission); UNITED species will be considered `invasive' for this STATES Bureau of Land Management regulations (prohibiting purpose, however, the prohibition must be more the introduction/use of alien plant species in site restoration activities on leased federal lands) general (prohibiting all introductions without 108See, e.g., MARSHALL ISLANDS Endangered Species Act permission)--a provision that enables the regu- 1975 (Title 8 Cap 5) § 10. (`it is prohibited to import ... exotic lators to investigate invasiveness and other char- plants and animals ... into the Republic except under permit by acteristics on a more individualised basis. This the Secretary as defined in the regulations authorized by this Chapter.') approach typically uses an evaluative standard 109See, HUNGARY Nature Conservation Act of 1996 (defining or scientific model.108 an `introduced organism' to include any organism that has become part of Hungary's flora or fauna due to intentional One obvious and related issue relates to the human action); UNITED STATES Executive Order 13112 (including as `introduction' any `intentional and unintentional nature of `introduction.' The nature of regulation escape, release, dissemination, or placement of a species into is such that one cannot speak of legislation man- an ecosystem as a result of human activity.) Biodiversity Series 35 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species Regulating Introductions introductions, but may be difficult to enforce with smaller and non-commercial activities, and Given the difficulties and uncertainties in iden- may require intensive capacity development in tification processes described above, the only regard to unintentional introduction of hitchhik- truly `sure-fire' way to eliminate the negative ers and parasites. impact of invasive species is to prevent all `alien' species introductions, and to promptly eliminate In some (particularly developed) countries, all specimens of recently or inadvertently intro- border control mechanisms (specifically `the duced species--an impossible and undesirable surveillance of entry points and facilities') are objective, in light of the many national priorities designated as the primary means of invasive and objectives that must be served through controls.110 However, in other cases, the problem the constant interchange of agricultural and of pervious borders may make this approach other products. The political reality, moreover, to regulation quite difficult. Moreover, after is that the livelihoods of many persons in any species have entered the country, they may be country (from landscape gardeners to dealers in multiplied, sold or otherwise cease to be under aquarium fish) depend on alien species. the control of the person or entity who brought it in into the country, before it is introduced Consequently, the third challenge is regula- into the environment. Perhaps most important, tory--to assert control on the introduction of the focus on national border controls may also species, in a way that (i) enables the system eliminate any possibility of addressing introduc- to apply whatever identification techniques it tions between states, subnational regions and adopts for determining the likelihood that a ecosystems.111 species will be `invasive' in the habitats in which it is introduced; and (ii) imposes appropriate The second primary mechanism for applying levels of restriction on species introduction, controls has been monitoring. As more specifi- based upon the level of risk or uncertainty in the cally discussed below, physical surveillance decision-making process. The challenges of this of lands and species is an essential element component revolve around each State's ability of invasives regulation. This responsibility is to screen materials entering the country; to find, recognised in legislation, both directly112 and recognise and distinguish alien and native spe- indirectly.113 cies; and to know where (in which ecosystems) the species will be introduced. 110See, for example, Council of Europe "European Strategy on APPLYING CONTROLS ON NTRODUCTIONS I Invasive Alien Species" Doc. T-PVS (2003) at 7, discussed in Genovesi, 2003, at 7. Perhaps the most troubling element in regulat- 111See note 74, above, and accompanying text. ing species introductions and preventing the 112See, e.g., Council of Europe "European Strategy on Invasive spread of invasive or harmful species is the need Alien Species" Doc. T-PVS (2003) (requiring as a second mechanism in addressing invasives problems, the surveillance to find one or more defined places or situations of `areas where severe disturbance has occurred (land which can serve as `control points.' Policy-mak- clearance, storm damage, etc.)') ers often assume that controls will be asserted at 113See, e.g., AUSTRALIA Biosafety Act (imposing national borders--an option that is particularly responsibilities for ecosystem planning and restoration, based on governmental determinations, which must necessarily imply appropriate for large international commercial a governmental surveillance obligation.) 36 Environment Department Papers Tools of National Implementation RESTRICTIONS ON SPECIES tions can be imposed on commercial importers INTRODUCTION AND PERMITS for retail sales (imposing responsibilities for In addition to generalised oversight require- informing purchasers about their responsibili- ments, the application of regulatory controls ties), on agricultural introductions (limiting turns on the need to impose specific require- the geographic area or ecosystem in which the ments and restrictions on the permits them- species may be introduced), and on containment selves, when issued. Such permit conditions and surveillance. may be generic (applicable to all permits) or spe- cific (imposed on a permit-by-permit basis.) This Enabling Programmatic Responses process of imposing conditions on regulatory permits is not noticeably different in the context One of the most important challenges of inva- of species introductions than in other natural sives-related legislation is that of strategic plan- resource contexts, with one exception. Unlike ning, whether for species recovery, for habitat many kinds of natural resource permit, a species recovery or directly for invasives eradication. introduction permit constitutes a kind of `nega- A wide variety of such laws exist,114 varying tive use' permit. Its object is not to regulate con- widely in their level of oversight/control over sumption levels in regard to the use of a natural invasives planning processes, in essentially the resource, but to ensure that an external resource same way that laws on other types of natural re- does not harm pre-existing resources within the source planning vary among countries. Thus, for ecosystem, area or country. Consequently, the example, some provide detailed descriptions of main condition imposed on a particular permit the contents of strategies, the manner in which will usually involve monitoring or otherwise ad- they must be adopted and reviewed, and the dressing off-site impacts, events and conditions. involvement of the public, while others describe only general authority and intentions. Relatively These provisions are sometimes difficult to few such laws specify in detail the particular impose upon private individuals (who will not activities that must be undertaken, although have a right to enter or monitor the lands of most presume that the implementing agencies others.) This fact carries two implications. First, or individuals will be empowered to take the governmental responsibility for oversight of necessary measures. the holder's compliance with his permit may involve a higher level of direct involvement than In this regard, there are generally reckoned to be where permit conditions focus on oversight and four primary response measures for control of documentation of activities and lands within the species that have become invasive:115 permit-holder's control. Second, however, the 1. Mechanical control (systematic or non-sys- permit restriction and the manner in which it is tematic cutting or other harvesting of plants fulfilled may affect the basic responsibility and or animals); liability of the permit holder. The importance of permit conditions as restric- tions and mandates cannot be over-emphasised, 114See, e.g., NEW ZEALAND Pest Management Strategies, in light of the regulatory limitations inherent in discussed in Biosecurity Act of 1993 at 56­70. 115This list seems to arise by common consent, although no the primary mechanisms (border control and single source is cited for it. A good example and discussion is direct surveillance). For example, such condi- found in IUCN-EARO, 2004. Biodiversity Series 37 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species 2. Chemical control (herbicides, insecticides, Eradication, Bioremediation, and Restoration of rodenticides, etc., which may in some cases Native Species be very closely targeted to particular spe- Although costly and difficult, the eradication of cies); invasive species, remediation of their negative 3. Biological control (the importation of bio- impacts, and restoration (or allowing the natural logical agents that prey on, repel, interfere reintroduction) of native species and ecosystems with, or otherwise impact the invasive spe- are critical elements of invasives control. To date, cies); and such efforts have met with varying levels of suc- cess, depending on context, and in some cases 4. Habitat management (altering the site condi- have actually resulted in additional harm.120 tions in a way that makes them less commo- Typically, the issues and options involved are dious to the species.116) addressed in the positive--that is, in the context of recovery of threatened or endangered species, In combination, these measures are often re- promotion of safe and/or pesticide-minimising ferred to as "integrated pest management" or agricultural practices, and other positive objec- IPM. IPM programmes are most effective where tives.121 Under these laws, removal of non-native all options are available, but controlled by both species which impede these objectives is one pre-planning and post-implementation monitor- authorised action within the framework of a ing. However, in some countries, the law may larger `species recovery plan' or `integrated (ag- prevent the use of one kind of measure (for ricultural) pest management strategy' or similar example, prohibiting all new species introduc- governmental action. tions, except for agricultural species, controls on unpermitted hunting, etc.),117 creating obstacles In a few laws, however, there are stronger man- that ultimately add to the invasives problem. dates. Particularly in the agricultural context, Hence, a balance of provisions (enabling and controlling) and mechanisms for interaction 116One example of this is the alteration of water chemical with agencies controlling various pathways, are content, by imposing measures to minimize the amount of fertilizer chemicals that find their way into a river or wetland. essential to implementation of IPM and more IUCN-ROSA 2004. This is particularly effective where, generally to the control of invasive species. as here, the invasive species thrived in replacing a species whose numbers were depleted as a result in the alteration of A number of kinds of empowerment are found the acidity of the watercourse. See also, BULGARIA Fish Husbdandry Act (State Gazette No. 91/19.11.1982) in various laws, from the right to declare a `bi- 117This is currently a problem in several countries bordering osecurity emergency' (under which government the Caspian Sea (Iran, Russia, Azerbaijan, Turkmenistan and has broader rights to take eradication actions, Kazakhstan), that are currently investigating appropriate and integrated approaches to the eradication of aquatic invasives. including entering and using private property)118 (Personal communications with Lev Neretin, Vladimir B. and a narrower right to take `rapid response Salnikov, Hikmet Alizade, and Boris Chaikin.) measures' (such as imposing quarantine or 118NEW ZEALAND Biosecurity Act of 1993 Part VII. other containment requirements on incoming 119AUSTRALIA (Northern Territories) Fisheries Act. shipments of goods or vehicles thought to be 120Stories of efforts to eradicate alien species by bioremediation, which instead resulted in an additional harm to pathways for `hitchhiker' invasives, and to seize native species, are relatively common. See note 21, above. and destroy infested property, if necessary) in 121AUSTRALIA Environmental Protection and Biodiversity the event that certain criteria are met.119 Conservation Act 1999; UNITED STATES, Endangered Species Act of 1973. 38 Environment Department Papers Tools of National Implementation strong powers are frequently given to agricul- Incentives and Recommendations: tural ministries and agencies to identify weed Promoting Positive Actions species (based on their impact on agriculture, re- One frequently overlooked mechanism for gardless of whether domestic or `alien' or wheth- invasives control relates to encouraging the use er they have other impacts on biodiversity) and of native and approved locally adapted spe- lands infested with them, and to mandate that cies. These mechanisms can be used to avoid the landowner must eradicate such species or the need to apply any kind of provision or risk face penalties.122 Typically, such strong provisions analysis to uses of non-native species in these require direct oversight and enforcement, as such contexts, and may be thought of as mechanisms actions must begin with a government order to for diminishing the role of and demand on a landowner noting that an infestation has been government, as well as simplifying the lives of identified (otherwise, the landowner may not regulated persons. Many of the strongest such know that plants which exist on his property are provisions appear in seed and other agricultural the subject of these strictures.) Failure to act car- law, although the regulatory statements of ries possible penalties and the government may standards and objectives in these laws may need enter the land and take the eradication measures directly, if it chooses.123 In a few cases, the law imposes a general requirement on the landowner 122See, e.g., SOUTH AFRICA, Conservation of Agricultural to know and eradicate weeds without any initial Resources Act of 1983; UNITED STATES (various state notice from government.124 The author has not laws, for example, Illinois, 505 ILCS 100/10 ) (various `noxious weed' laws require persons owning or controlling been able to determine whether any such laws land to destroy or control listed noxious weeds found on their have actually been enforced without de facto use lands. These provisions rely on local implementation and of the same mechanism (government discerns enforcement mechanisms. One of their primary tools is the power of the governmental authority to enter private property the nature and presence of a weed and notifies and destroy these species and bill the property owner for these the owner that it must be eradicated within a costs. In some cases, the law allows these costs to become liens against the property, or to be added to the property owners tax particular time period, etc.) bill.) See also Klein, Making a list, 2004 123See, UNITED STATES (Hawaii) HI Revised Statutes, One element of this process that has been incom- §§152­6. pletely addressed in many legislative systems is 124See, e.g., SOUTH AFRICA (Mpumalanga Province) Nature the application of the science/standard-based Conservation Act of 1998, as reported by Stein, R., 2004. decision process to introductions that are under- 125CHILE Establece Normas De Ingreso De Material Biologico Y Deroga Resoluciones Que Indica (24 Sept. 2001) taken as remedial measures. In some countries, (Allowing exceptions from the basic prohibition on invasives remediation processes are specifically exempted for biological control agents, with permit; honeybees (subject from regulation as a species introduction.125 In to other controls)); MARSHALL ISLANDS Endangered Species Act 1975 (Title 8 Cap 5) § 10 (an exception from other countries, the species introduction controls species introduction requirements for `beneficial insects are sufficiently strict that they impede the initia- and biological control microorganisms ... imported in tion of remediation plans.126 Taken individually, accordance with the plant and animal quarantine laws of the Republic. [COM P.L. 6­55, § 10 (1975); 45 TTC 1980, § 110, these provisions would either be over-strict or modified.]') over-lenient. The ultimate solution, of course, is 126See note 119 above, as one example. somewhere in the middle--typically by integrat- 127See, e.g., COLOMBIA Por el cual se reglamenta el ing invasives issues in legislation relating to the Código Nacional de los Recursos Naturales Renovables y de Protección al Medio Ambiente y la [Ley 23 de 1973] en development of ecosystem- or species-rehabilita- materia de fauna Silvestre (Decreto No.1608) 31 Jul. 1978, at tion plans.127 Art. 129; AUSTRALIA Biosafety Act. Biodiversity Series 39 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species to be adjusted to ensure coordination with inva- with care, recognising several kinds of risks, sives standards and processes. especially-- By and large, the use of generically described · that over-hunting of an alien species may `incentives and subsidies' is not particularly well impact native species, and adapted to many parts of the invasives issue.128 In some targeted activities, however, it can be · that many hunting methods have non-selec- of value. One example is found in the context of tive impacts on ecosystems and other spe- subsidies that encourage nurseries to produce cies.132 and market native and long-adapted species, thereby making such plants more attractive financially for use in landscaping and as ground 128For example, Shine, et al, 2000, at 76, suggest payments to cover.129 landowners and others for eradication on their land (a practice of value only where incurrence of a greater cost is imminent or ongoing for that species' eradication process); tax reductions Similar provisions in some countries, recom- for eradication (commercially relevant only where the value of mend or encourage private persons to use the reduction exceeds the added cost of the practice--beyond designated species for ornamental, forest, and what the taxpayer would do for himself anyway), and `cross- compliance mechanisms' (apparently referring to the creation other uses.130 These provisions are particularly of a linkage between invasives eradication and grant/subsidy directed to invasiveness issues. Because they payments. This latter approach may be problematic in are designed to apply in a blanket fashion to developed countries in which strong social purposes must exist before a grant/subsidy program is instituted. Tying an private action, and apply to all non-native spe- expensive or difficult additional action to the process might cies, however, these provisions are generally eliminate the incentive for landowners, farmers, etc., to participate in the subsidy programme. Hence, this approach non-mandatory, stated as recommendations or is generally not a way to use a subsidy created for another suggestions rather than requirements. In some purpose as an incentive to eradicate aliens. Direct subsidies cases, these provisions are supported by various tied to invasives and weed removal, including agricultural subsidies conditioned on the removal of agricultural weeds, kinds of compulsion, including the need to get may be very effective if they are applied broadly throughout permission before using non-recommended spe- an affected region. SOUTH AFRICA, Conservation of cies (and no such requirement with regard to the Agricultural Resources Act of 1983.) 129Baldacchino, et al., 1996. recommended list.) 130UNITED STATES, Regulations under the Surface Mining and Reclamation Act, 30 CFR 715.20(b), 816. 111.(b)(5) (specific governmental approval required where non-native `Open season' species are being used in required minesite restoration activities); In BELGIUM (Walloon), per Lambinon, 1997, One tool that sometimes provides an incentive the government has adopted lists of plant species that are for control of invasive species is the adoption of recommended for use in agro-environmental contexts, a list of species that can be hunted, or even to and supports these with subsidies in some cases. A 1995 Conference of EU countries included a recommendation pay a bounty on each listed specimen. In some regarding using native species for habitat creation and cases, where ungulates, primates, fish and other reconstruction activities. (First European Conference for the Conservation of Wild Flora, Planta Europaea, 1995, cited in species have commercial value, these provi- Shine, et al. 2000.) sions can ultimately backfire, as the hunters 131Corn, et al. 1999 (concerns about the impact of open season take measures to increase wild populations, in on Chinese mitten crabs (an alien species found in California order to maintain their source of supply.131 As waters.) 132These concerns are reflected in the Bern Convention's with other measures, the concept of individual Recommendations for the Eradication of Non-native Terrestrial hunting as a means of control must be utilised Vertebrates T-PVS (2000) 65 Revised 2. 40 Environment Department Papers Tools of National Implementation In this connection, as noted above, there can In addition, however, species "reintroduction" be confounding factors, such as activists who projects, particularly where the species has not oppose the hunting or other destruction of the been present for a considerable time, apparently invasive species for humane or other reasons. present special concerns. One concern, particu- larly where the species is generally considered Connected to this mechanism are programmes to be threatened or endangered, is the possibility for the commercial use of invasives, such as that the factors which caused its disappearance Southern African programmes which use inva- from the area have not been resolved.136 In addi- sive aquatic plants in local furniture-making and tion, it has been noted that even `near relatives' weaving.133 To some extent, these programs take of a local species may be sufficiently different to the view that if the species cannot be eradicated, become invasive when introduced as a replace- at least it can be used--a process that contrib- ment for that species,137 suggesting the need for utes to population control, as well as replacing extreme care and monitoring of introductions of some of the livelihood contribution lost as a any other species.138 Finally, as with any move- result of the invasion. ment of goods or materials into an area, the pos- sibility of hitchhikers on or in introduced plants, Regulating Government Action animals, fungi and other organisms is addressed and Procurement through provisions which call for quarantine or testing of specimens intended for introduction.139 Stronger compulsion may apply to actions of government, including everything from spe- cies and/or ecosystem recovery programmes 133IUCN-ROSA, 2004. to landscaping of government facilities. For 134See, e.g., SWITZERLAND, Regulations of the Commission for the Conservation of Wild Plants, 1994 (standards for obvious reasons, many countries include provi- the production and use of seeds and plants suited to local sions mandating the use of native species in conditions (a determination based in part on local origin of ecosystem recovery programmes, and requiring the species, recommending the use of seeds sourced from within a 20 km radius of the proposed use) for restoration particular findings and processes before any and similar purposes); HUNGARY, Nature Conservation Act variation from these requirements can be al- of 1996 (preference for native tree species in reafforestation lowed.134 programmes); UNITED STATES, Executive Order 13112 of 1999 (use of native species in restoration of ecosystems that have been invaded). NEW ZEALAND and SOUTH AFRICA One factor that is sometimes overlooked is also reportedly have policy documents strongly encouraging the need to examine the environmental and a preference for native species in restoration and revegetation schemes. (Cited in Shine, et al. 2000, at 80.) other consequences of governmental plans for 135See Young, 1994­1995 (Cyprus) (describing an unfulfilled reintroduction and reforestation/revegetation. afforestation plan to plant trees on an important geological Primarily, this examination should consider the structure (chalk hills) of esthetic and geological importance.) natural and human history both of the site and 136De Klemm, 1996. of the species on it. Thus, for example, plans to 137Schei, 1996 afforest a given area should generally not be 138GERMANY (federal) Nature Conservation Act of 1987, Chapter 5 at § 20 permitting only `the installation of animals implemented simply because the area is sparsely and plants of displaced wild species in appropriate biotopes covered. There are many areas which have not within their natural area of occurrence' (translated in Shine, et been forested, and which contain biological and al., at 79) 139CUBA Regulaciones sobre la Diversidad Biológica (Gaceta other resources that should be protected against Oficiál 631/1996) 28 Nov. 1996, but also in most laws that a major attempt to change habitat type.135 include or focus on phytosanitary issues. Biodiversity Series 41 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species Controls on Incidental, Small and Uninten- trols are sometimes imposed more intensively, in tional Introductions response to particular urgent threats.140 Direct controls, as described above, are most There may be situations in which border con- effective where, and to the extent that, the indi- trols may support efforts to inform and regulate vidual or entity introducing or controlling the non-commercial introductions. Primarily, such specimens is know to government and partici- control may be increased by requiring com- pating in the control process. They are virtually mercial importers of alien species to retain some un-applicable where this person/entity is not level of responsibility for subsequent use of cooperating, whether those species by retail purchasers and others.141 · because he is unaware of the requirement, Oversight/monitoring and Indicators · because he does not feel that his small viola- tion will be harmful, or The third challenge is long-term in nature. The objective of oversight and monitoring of intro- · he simply does not care but feels confident duced specimens and their progeny addresses that he will not be caught. essential issues of awareness in both regulatory and private circles. The scientific and adminis- While measures such as public awareness rais- trative processes described above for identifying ing are very important in this context, so long as and controlling species will never be perfect. compliance with the law will cost money, incur Some past introductions have not yet demon- delay, or require significant additional effort, strated their invasive characteristics in their new smaller and unintentional introducers will con- surroundings. Scientific understanding is still tinue to have an incentive to avoid compliance evolving, and administrative controls depend wherever possible, particularly since they can be to a large extent on the awareness and support relatively certain not to be caught (and if caught of the regulated public. It will be necessary to can usually avoid or minimise consequences by assume that some invasive species will `slip claiming that they did not know of the law and/ through the cracks.' To address these oversights or did not recall the small amount of biological or impacts, one must first be aware of them. material involved.) Consequently, both a mechanism and a mandate for continuous monitoring will be essential. As an initial matter, governmental controls can do little to increase awareness, beyond This factor again underscores the difference mandating certain activities by the commercial between the governance of intentional and unin- enterprises that rely on consumer trade in alien species (discussed below). The legislative power 140For example, many European and North American airports to intercept invasive species at borders is par- currently impose very strict luggage search requirements on ticularly difficult, with regard to small and unin- all passengers owing to fears of the spread of `bird flu' through the importation of uncooked poultry products. It is generally tentional imports in luggage or other containers. expected that these measures will cease at some point when the At present, such controls are adopted as the only threat of bird flu is either diminished or so general that controls available option, with the relatively unsatisfacto- no longer appear valuable. 141Although controls could be imposed upon resale within ry objective of increasing whatever chance exists the country, the policing of all such transactions is virtually of apprehending small quantity entry. Such con- impossible. 42 Environment Department Papers Tools of National Implementation tentional introductions. If all introductions were introduced might later prove to be harmful.144 At intentional and obtained and complied with a minimum, it will be necessary to ensure that their permits, oversight might be a relatively the introducer is complying with permit require- manageable task, and could be directed solely ments.145 at the introducers. However, given the number of unintentional introductions, and those which These monitoring responsibilities are par- (intentional or not) are unknown to any respon- ticularly dependent upon a relatively precise sible governmental agency, the monitoring pro- knowledge of the locations in which species cess must probably focus much more broadly, on are introduced. Of course, the government's geographically remote areas, including agricul- oversight must necessarily include watchful- tural and `wild' lands and waters. ness covering the entire country, however, the specialised attention to intentional introductions can be much better targeted where the loca- Intentional Introductions tions of the introduction and use are precisely As with any permit system, it is common for known. Oversight regarding introduction on a invasive species legislation to try to place at particular parcel or facility is clearly simpler and least some of the responsibility related to the less expensive that the broader oversight needed introduction on the user/introducer himself. where the scope of the introduction permit Consequently, many kinds of permits for species extends to an entire district or province. For this introductions require the introducer to monitor reason, invasives oversight is frequently linked his own and surrounding lands for indicators of to regulatory provisions that require registra- invasiveness, and in some cases to identify and destroy seedlings or young of the introduced 142ARGENTINA, Resolution 376/97; NEW ZEALAND plant, when they are found outside of the Hazardous Substance and Noxious Organisms Act of 1996, at introduction area.142 These provisions typically § 13 143 increase in intensity, where the situation requires See, e.g., CUBA, Decreto Ley No. 190 de la Seguridad Biologica, 1999. stricter controls, and particularly where the 144Shine, et al. 2000, at 68, state that Argentina does not allow species is clearly not present through any other this kind of monitoring unless a species has been identified pathway. Hence, for example, the responsibility as harmful, however, this statement may not take into account various other governmental authorities which broadly allow of an introducer with permission to transport/ government to monitor the state of agricultural, forest, cultivate GMOs in strict containment, typically protected and other lands and waters, and to address perceived includes very strict duties to monitor outside the threats and risks. 145Governmental responsibilities must be broad enough to containment, and strict liability for specimens encompass oversight/monitoring of species introduced with found outside the containment.143 permission or declared non-invasive. See, e.g., TAIWAN Wildlife Conservation Law of 1989 at § 27 (government These requirements do not eliminate the need monitoring where any animal species have been introduced). A number of laws target these responsibilities toward particular for governmental monitoring, however. It lands or particular biomes. AUSTRALIA, for example, remains essential to ensure that any deficien- reportedly applies such responsibilities to the Torres Strait, to cies in government oversight, as well as the monitor movement of species from New Guinea (Shine, et al, citing another report). See also UNITED STATES (Hawaii) HI introducer's technical or other errors, do not re- Revised Statutes, §§152­6, formal survey of `pristine' areas sult in harm to the country. It is also essential to required to guard against infestations of specified `noxious weeds.' Other States have obligations to undertake regular address the possibility that some species which surveys of specified ecosystems, waterways, etc., as well (listed has been labelled as non-invasive and freely in Shine, et al. 2000 at 68. Biodiversity Series 43 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species tion or other government notice of the places in of indicators that a species is exhibiting invasive which non-native species are introduced, used, characteristics or establishing itself within the kept or contained.146 uncontrolled environment, nor will they be aware of any need to address these concerns. It is further unlikely that they will have the Unintentional and Illegal Introductions technical or physical ability to undertake such As noted in detail throughout this Part and Part monitoring.147 As a consequence, governmental IV, a significant group of pathways exist which surveillance must form the first line of responsi- are not easily addressed by legislation--that is, bility for oversight of informal and unintentional while it is easy to address them on paper, the pathways. impact of the legislation will not be notable, and will not achieve the stated objective of In addition, however, it is noted that certain reducing and controlling invasive species. These commercial sectors exist primarily for the pathways are generally referred to as `uninten- purpose of supporting the importation of exotic tional and illegal introductions' and involving plants and animals, whether as pets, ornamental the actions of a broad swath of the population, plants, or even small-quantity seeds and seed- including lings for gardeners and small farmers. It may be appropriate to impose some level of national · Persons who are not aware of the issue of oversight responsibility on these commercial invasive species or the legal limits on species enterprises, in addition to responsibility to introductions; build awareness in their customers regarding invasives. · Persons who are not aware that their actions (and the specimens they own or dispose of) are included within those laws; Invasives in EIA--Prevention of `Further Spread' · Persons and entities whose actions and level The environmental impact assessment process of involvement with invasives is relatively is another mechanism for addressing oversight small (small agriculturalists, researchers, responsibility. Where the law enables control gardeners and others) and who discount its and/or approval of new or extended activities, impact, and assume that they need not make an EIA should include consideration the pos- the effort of complying with permit require- sibility of introduction, or especially of further ments and other restrictions; and spread of invasive species already introduced, as a possible environmental impact of that activ- · Persons who, while attempting to comply, ity. The possibility that development activities do not possess the technical ability or appro- will create an inroad for entrenching invasives priate equipment and experience to comply is clearly an environmental risk of the type EIA fully. The oversight and monitoring of these pathways 146See, e.g., BRAZIL Portaria n° 108-N (6 Oct. 1991) cannot generally be expected of the introducers (registration process for exotic animals.) themselves, at least not with any anticipation of 147Often, species look significantly different to the untrained eye at various stages in their life cycle, or when found in significant compliance. Few if any individuals naturalised situations as compared with their appearance in engaging in this activity will normally be aware cultivation or captivity. 44 Environment Department Papers Tools of National Implementation is intended to address. Realistic assessment of reactive approaches to invasives. Most of the this possible impact, and the imposition of ef- literature on invasive species is focused on the fective control and mitigation measures can be difficulty in finding effective eradication or con- a major element of invasives control. This factor trol techniques, documenting the effectiveness of is already well recognised in some developed such activities or describing the costs expended countries, where the concept of addressing in these processes, and comparing it to the finan- invasives issues in EIA processes has been rather cial damage caused by the invasive species. A thoroughly canvassed in litigation.148 typical example of the latter is as follows (look- ing at an ongoing eradication programme for the coypu, an invasive rodent in Italy): Government Empowerment and Obliga- tions: Enforcement and Remedial Action In the year 2000, damage to crops compen- The fourth regulatory challenge is the need to sated by public administrations reached almost empower government to take action when an 300,000 and costs caused directly [by coypus] invasion or a potential invasion is detected. This exceeded 1,500,000. In 2000, Italy spent over element includes both legal and political aspects 3,500,000 for compensating or remedying which sometimes have a far greater impact damage caused by the rodents and for controlling than any legislative or enforcement activities. the species in order to mitigate these impacts. In addition, it includes significant elements of Over 60,000 coypus were killed in trying to the concept known as "due process" in many control their population. The total costs suffered countries--that is the right of individuals and during the 6 years covered by the survey (over entities to be secure in their ownership rights. 14 million) has already exceeded the cost of the As a consequence of this issue, it is necessary for (successful) 11-year-long eradication effort in governments to state clearly the nature of each East Anglia ( 5 million), which was considered person's financial responsibility for damages very expensive at the time. Furthermore, since caused by the species he introduces or allows the Italian habitat area that is suitable for the to spread onto his property, including rights of coypu is around 3 times wider than the present government and responsibilities of individuals range, it is very likely that the ongoing expan- for containment or eradication of species that sion will cause an increase of economic losses up are found to be harmful and invasive. Another to 9­12 million per year in the future.149 issue to be considered is the role of compensa- These discussions provide two practical les- tion of landholders, agriculturalists and others sons. First, obviously, eradication/mitigation who have acted within the law, but whose crops is both difficult and expensive, leading some or lands must be used, confiscated or destroyed commentators to express a preference, in some in order to eliminate an existing or threatened cases an absolute mandate for prevention of invasion by a harmful species. These principles are generally well understood in existing na- tional law, although there are certain aspects of 148See, e.g., Palila v. Hawaii Department of Land and Natural invasive species that may necessitate the use of Resources, 852 Fed Rptr 2d 1106 (9th Cir. 1988); Anglers of innovative approaches to them. the Au Sable v. US Forest Service, 2005 WL 3334981 (E.D. Mich. 2005); Northwest Environmental Advocates v. US EPA (N.D., Cal. 2005) representing a fairly random sampling of In this connection, it is important to keep such cases. in mind the difficulty and costs involved in 149Panzacchi, et al., 2003. Biodiversity Series 45 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species introductions. Perhaps more important, such relate to enforcement, noting particular needs measures are most likely to be prioritised where and examples of efforts to address them. there is a significant current financial impact of the invasive species or a strongly and generally Political and Social Mandate held perception of the need to eradicate it. This combination is far from common. Even where As an initial, cautionary point, it is important to invasive-caused damage is widespread, it is keep an appropriate perspective regarding the more likely to be perceived as a business prob- value and impact of legislative provisions for lem (in agricultural situations) to be addressed the enforcement and remediation of invasives by each agricultural landowner with a combi- issues. Although comprehensive studies of nation of pesticides and other measures. This invasives governance and its impact have not focused approach may not eliminate the wider yet been undertaken, studies in closely related impact of the species on other elements of the fields provide some useful lessons regarding national economy and environment, and may the importance of political/social factors, and also cause unplanned negative impacts on other the inability of legislative systems to address ecosystems, species, or government objectives. them. Most importantly, the consequences of the In brief, this challenge demonstrates several lack of political/social support in the context of primary points-- sustainability and natural resource law has been well demonstrated by a number of studies. To · that, regardless of the contents of relevant illustrate the point, this section summarises a legislation, enforcement is ineffective recent study of the enforcement of wildlife trade without political/social support at all lev- (CITES implementation) law in the Member els--an issue that law reform alone cannot States of the European Union.150 address; As originally postulated, that study was based · that compliance, rather than compulsion, is on the belief that low penalty levels stated in a far more essential component of regulatory national wildlife trade legislation were fostering success, although more difficult to engender illegal wildlife trade (smuggling of endangered and measure; and threatened species), because the potential risks and costs to the violator were lower than · that compulsion-based provisions must be the risks and costs of many legal business enter- designed to form a mechanically exact sys- prises. The study set out to prove that increases tem that gives certainty to both government in penalties and the development of guidance and regulated persons, as well as to the documents assisting judges in setting penalty judiciary and others; and amounts would raise the risk/cost to the smug- · that invasives issues and impacts are fre- gler, and lead to a consequent decrease in illegal quently not recognised for what they are--a wildlife trade. fact that may inhibit compliance even where The study's results, however, were quite dif- appropriate levels of public concern have ferent. Legal analysis showed that legislation been generated. addressing violation and imposing penalties The following discussion briefly summarises five elements of the legal/policy framework that 150Anton, M., N. Draggfy, et al., 2002. 46 Environment Department Papers Tools of National Implementation was partially deficient in only one of the 15 many, when presented without the explanatory then-Members of the EU (Portugal). Substan- context regarding potential destruction of eco- tive analysis of apprehension and enforcement systems and future human wellbeing. of wildlife trade smugglers, although not as rigorous or comprehensive as the legal analysis, Nascent efforts in some countries to develop clearly demonstrated that judges (and admin- judicial guidelines, too, were found to be of istrative authorities, where so authorised) had limited value. By definition, such guidelines almost never penalised convicted wildlife smug- may not be rigorously imposed against the glers at even 50% of the penalty level authorised judge's wishes, and in many countries even the by law (and in most cases, the penalties did not existence of such guidelines is illegal, based on rise to the level of the actual profit the smuggler the possibility that it might be seen to impair the would have had on the specimens confiscated judge's `judicial independence.' at the time of apprehension.) Consequently, en- Inevitably, the study's primary recommenda- forcement provisions in wildlife trade legislation tion was the unavoidable one--that aware- had less commercial impact on smugglers than ness-raising is essential. Such efforts must be the fees for obtaining a business license would targeted both narrowly (to the judiciary and have done. other decision-makers) and more generally, Deeper enquiry into this judicial reticence recognising that `public opinion' has a much demonstrated that judges (even those not stronger and usually sub-conscious impact on subject to regular re-election or public recall) final judicial decisions regarding penalties and were strongly swayed by public opinion. In enforcement. one case, a judge who had imposed a relatively A useful secondary recommendation, however, severe penalty on a particular smuggler had related to the targeting of the penalty/enforce- been markedly influenced by a recent spate of ment provisions themselves. One country under documentaries on local television regarding that study (Denmark) had found particular suc- the importance of ecosystem preservation and cess in the enforcement of provisions directed the impact of illegal harvesting of wildlife on not at the smugglers themselves, but at those the future of the planet. The high penalty was whose business activities frequently utilised a subject of strong and generally negative press illegally obtained wildlife--taxidermists. The attention, counterbalancing the positive impact incidence of illegal capture or importation of of the documentaries on judicial awareness and wild mammals and birds had been preliminarily suggesting that his future decisions might be found to have decreased through the imposition more moderate. Public opinion at the time of a of such controls. The explanation for this result criminal case involving wildlife smuggling was is relatively clear--while smugglers' activities found to be overwhelmingly focused on person- are difficult to apprehend, document, prove, and al human issues (sympathy for the defendant obtain judgement on, those of public businesses and claims that his life was worth less to the with commercial licenses are relatively easily legal system than that of a captive parrot.) The overseen. Moreover, such businesses have an fact that the crime involved is the attempt to sell interest in avoiding even relatively low-level an animal or plant (an activity that can sound fines penalties, affect their reputations, as well as innocuous), coupled with penalties amount- their profits. ing to thousands of dollars appeared unfair to Biodiversity Series 47 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species Compulsion countries identify this as a primary point of en- forcement,152 there are several deficiencies in this The final finding mentioned in the prior section approach, including underscores the more general statement above, that compliance has a much greater impact on · the existing demands on border officials, the achievement of legislative objectives than limitations in border stations as filters of compulsion. It is simply not possible to police unreported material, and the porous nature all pathways (human activities causing species of many borders; introductions) and the relatively low percent- age chance of apprehension is generally not a · the fact that border controls operate only at deterrent unless it is financially significant in a macro level, and cannot control the intra- comparison with the costs or delays avoided by national introduction of nationally present non-compliance. species that are alien to an ecosystem; It is relatively difficult to address compliance · the fact that species introductions do not issues with any degree of certainty, or even happen at the time of border crossing but at to provide a reliable measure of it, however. some later period. In the interim, the species Recent analysis in the United States, seeking to may have been multiplied, sold, traded, determine levels of compliance noted that in modified and otherwise dispersed in ways most cases the indicator evaluated is levels of unknown to government officials and un- enforcement activity.151 Unfortunately, such an controlled by the border control activities. indicator is completely imprecise. Higher levels of enforcement may indicate either increased These deficiencies suggest the need to supple- non-compliance (creating a larger number of ment border controls with other compliance violators to apprehend) or enhanced attention to mechanisms, including positive incentives (dis- enforcement (apprehending a larger percentage cussed below). The measures most frequently of a fixed pool of violators.) As with the CITES adopted to ensure or motivate compliance are example of the preceding section, compliance those which generically assign civil and financial can be encouraged through enforcement, but responsibility to any landowner or other actor only where that legislative penalties are targeted who introduces a species. These provisions toward controllable activities and sectors or present difficulties in operation because of the communities with commercial or other incentive evidentiary problems. It is nearly impossible, to comply. for example, to prove a particular individual or organisation introduced a species, or to prove Compulsion thus remains an essential part of that the species was invasive, that the introduc- enforcement legislation. As in all legislative tion was in violation of the law, and that the frameworks, regulatory prohibitions are most ef- introducer knew or should have known that fective where they apply to very specific `choke his action was in violation and/or would cause points' through which most or all of the regulat- harm. ed sector must pass. In the context of invasives and alien species introductions, the most obvi- 151USEPA, 1994. ous choke point is the border crossing through 152Documented in., Council of Europe "European Strategy on which a species enters the country. While many Invasive Alien Species" Doc. T-PVS (2003) 48 Environment Department Papers Tools of National Implementation Other control measures may be pathway-spe- action is the possibility that other legislation cific--identifying markets, impacts and activities mandates or supports alternative principles or that can be objectively discerned, and that may actions that may directly conflict with the objec- be particularly susceptible to regulatory control tives of invasives control. For example, laws or certification provisions. mandating direct government remedial action are considered very important, because they enable action on private property, which would Direct Action by Government be impossible for non-governmental actors with- Not all legislative compliance issues relating to out the permission of the relevant landowner. invasives are focused on permits and private ac- However, a variety of other laws may protect tion. Some of the most important components of the landowner's rights, including provisions invasives control involve the control of ecosys- specifically permitting or mandating species tems, including measures aimed at preventing introductions for sectoral purposes (agriculture, or controlling the spread of species, eradication aquaculture, etc.) of invasives found to be causing or threaten- ing damage within the country, and other key User/introducer Liability actions (remediation, and ecosystem rehabilita- tion), while the contents of these measures is Environmental provisions are generally subject often intended as the empowerment of remedial to a concept that the `user pays'--i.e., that the action (discussed below), they serve two other person whose actions cause harm to common purposes, as well. First, they may constitute a resources (or obtains individual benefits from mandate upon government to protect landhold- them) should be responsible for reimbursing not ers and other interest holders from harms of in- only the value of the resources taken, but also vasive species.153 Second, they may also mandate the costs of control and oversight of those re- the enforcement of limitations on private action. sources and uses. Some elements of this process Thus, if a governmental agency does not take are purely financial--shifting the costs of permit measures to prevent or control private introduc- systems to the permit holders, for example, as tions that spread invasive species, legal action discussed in part F below. However, the equita- against the government may be authorised, even ble concept that one who individualises a benefit before the decision actually causes harm. from sovereign or national property also affects the nature of enforcement actions, also applies. Legislative mandates of government action are This would suggest, for example, that penalty typically designed to take national budgetary amounts should be calculated in consideration and other priorities into account, calling for ac- of factors such as the costs of remediation and tions to the extent of available funds or within the value of the resources lost, both as com- agency priorities. More definitively, such provi- modities and as part of important or protected sions often call for the creation of species and ecosystems. ecosystem recovery plans and other actions to enable (intergovernmental as well as public-pri- vate) collaboration to achieve invasives controls. 153Such rights apparently exist in ITALY, based on the description cited at Note 151 and accompanying text, they are specifically mandated in invasives context in ICELAND One of the most difficult elements to be ad- The Nature Conservation Act (No. 44/1999) 22 March 1999, dressed in legislation mandating government Art. 77. Biodiversity Series 49 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species In this connection, user-pays concepts enhance, The current practice in most countries, however, but are not specifically made part of, standard seems to rely on other laws which discuss harm approaches to liability. As in all legal situations, from animals or from cultivation activities, and liability provisions are generally either civil or to laws relating to particular ecosystems, areas, criminal, with a primary (but not invariable) species or activities of importance within the distinction between the two that country or community. While perhaps satisfac- tory in the short run (while the legal framework · civil penalties result in the payment of a for species introductions and invasiveness is be- sum of money to compensate the damages ing developed or refined), it is probably inadvis- suffered by an individual, company or by able to consider such provisions sufficient unto the government or the country as a whole themselves. (in the case of sovereign property, govern- mentally controlled natural resources and For example, agricultural laws typically contain other assets held for the benefit of all); strong provisions regarding liability for harm caused by the escape of farm animals, and · criminal penalties result in payment of fines, wildlife laws may contain similar provisions and fees that may not be tied to the financial relating to other animals legally held only in value of damage but which are usually paid containment.156 Presumably, some of these provi- to government, rather than to a victim or sions may provide a basis for civil action in the injured party. context of alien species as well as other contexts, however, these laws are often interpreted on The following discussion briefly summarises the basis of (and limited by) their statutory some of the liability factors that are more or less mandate. The context of the law may thus unique to invasive species laws and their imple- limit the kinds of damage or harm that may be mentation. compensated. Unlike the standard concern with regard to agricultural `escapees,' for example, CIVIL LIABILITY PROVISIONS alien invasive species create a risk of longer term Civil liability is typically founded either on the impacts, future harm and the need for conserva- principle that a private user who consumes a tion-oriented monitoring. The effects on these jointly held resource, or whose activities cause objectives may not be compensable if liability harm to jointly (or privately) held resources, action is based on existing law. should pay for those resources, as if he had pur- chased them, and for any consequent harms or Protected areas laws, and other conservation inconvenience to others caused by his personal laws may provide a similarly limited basis use. In a very few countries, specific legislation for civil liability, which may apply to invasive has stated this kind of liability in the specific context of harms caused by invasive species.154 154POLAND, Civil Code of 1964, as amended; Environmental In general, these provisions are unspecific about Protection Act of 1980, as amended. (The latter also the nature of the harms that form the basis of authorizes individual and NGOs to seek civil remedies through liability (apart from the costs of remediation.) In administrative processes, as well as through the courts.) 155 some cases, however, direct damage from the ac- Cited in notes 150 and 155 above. 156Western Australia, Animal Control Act, altering the burden tions of invasive species has been used as a basis of proof in cases against one whose captive animal escapes for civil claims, including against government.155 from a vehicle. 50 Environment Department Papers Tools of National Implementation species.157 These provisions often recognise the CAUSATION AND SPECIFIC INTENT intangible value of ecosystems and species over In the context of both civil and criminal liability, the long term, and thus may impose liability for invasive species laws raise two liability issues all restoration costs, even where the commercial common to many of the most difficult and value of the particular harms are relatively important environmental laws--the problems of low.158 There may, however, be uncertainties proving causation (that the particular individual for (government) claimants seeking to utilise or entity is responsible) and specific intent (that these provisions to address damages caused by the introducer knew or should have known invasive species, where harms arise from human of the consequences of his action, but acted action far outside the protected area's boundar- anyway.) Although these issues are phrased in ies and cause kinds of damage that were not terms of common-law liability, they are gener- directly considered at the time the legislation ally relevant in other systems as well, where, for was adopted. example, programmatic alterations in rights, in response to particular violations or conditions Hence, it will be necessary to review these laws are not allowed where there is an insufficient carefully, and examine the fate of previous cases basis for showing the legal justification for this applying them, before concluding that they may action. These difficulties may be exacerbated be appropriate tools in the control of invasive where invasives liability claims are based on species harms. It may not be necessary to adopt laws developed for other purposes. It may be duplicative provisions in a separate `invasive difficult to prove the relevant components of species law, however. Often a relatively simple a legal case (demonstration that a particular amendment to existing environmental liability individual's act caused harm, and evidence of clauses may resolve these difficulties. the harm itself, which may be prospective or scientifically complex.) CRIMINAL LIABILITY PROVISIONS Where there may be several possible sources Although there are numerous instances in which for an uncontrolled infestation of an invasives invasive-species introductions can be bases of species, current scientific and legal theories criminal liability under environmental laws,159 offer little possibility of proving that a par- most national laws imposing criminal respon- ticular introducer was the actual source of the sibility relating to aliens focus on specific legal violations (e.g., the illegal cultivation of specific prohibited species.)160 More general criminal 157See, e.g., HUNGARY, Nature Conservation Act of 1996; laws, as well as national agricultural and safety ECUADOR Expedir las Siguientes Normas Para la Instalacion y Funcionamiento de Granjas Avicolas en la Provincia De laws may also provide bases for liability, where Galaapagos. (Resolución No. 034) 4 Oct. 2002. the user has a clear responsibility to impose 158Id., recognizing the "immaterial [viz, `intangible'] costs safety measures for the protection of natural resulting from the damage to natural conditions and quality." 159 resources, private and common property, and See, e.g., SOUTH AFRICA (Mpumalanga) Nature Conservation of 1968; ICELAND The Nature Conservation health and wellbeing. Here also, however, it may Act. be advisable to examine such provisions and 160Reportedly, there are French and Western Australian laws consider whether minor amendments are pos- on these points (Shine, et al., 2000 at 82), although these do not appear to be environmental in focus, and the author has sible and would be helpful in clarifying the ap- not been able to review all of the possible sources of these plication of these provisions to invasive species. references. Biodiversity Series 51 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species problem. Some recent invasives liability provi- · to engage in commercial activities (business sions attempt to alter the necessary standards licenses); of proof,161 but these provisions have not been legally tested. This approach to questions of · to market products, produce or other com- responsibility and causation is more common modities (marketing authorities); where an activity is considered `ultrahazard- · to operate business or other facilities (envi- ous,' and may ultimately not be available ronmental permits and licenses, authorisa- where it can be shown that normal precautions tion to employ workers, and other permits); can be applied to prevent the harm. (In that and case, private responsibility provisions will have to grow out of permit provisions, as discussed · to engage in research or development prac- below.) tices (for example, permits and tax benefits for R&D, as well as permits for the use of Applying Administrative Powers/ Impact resources, including genetic resources). on Commercial Rights Administrative powers may include the ability In the final analysis, a strong administrative sys- to suspend or revoke permits to affect the avail- tem (when coupled with effective identification ability of tax benefits and other incentives, and and approval mechanisms as discussed above) generally to impact the commercial value of may constitute the most valuable elements of compliance with species introduction require- the enforcement regime relating to invasive ments, as well as recommendations, plans and species. These powers are quite varied, and priorities relating to species eradication and site may enable a variety of flexible and compelling remediation--activities which may not be legal actions by government to promote and enforce obligations under the invasives legal regime. compliance with invasives and species intro- duction laws. Financial Provisions The most obvious administrative power ap- Perhaps the greatest challenge of all, legisla- plicable to species introduction laws are those tively and politically, relates to the funding of relating to the enforcement of the conditions of regulatory systems and efforts to address inva- new species introduction permits. Such permits sive species. As noted above, the costs of control usually authorise direct governmental action to of existing invasives can be staggering. Among enforce compliance, including entry and inspec- national priorities, however, few countries tion of private property and records. They may identify either agricultural or conservation/en- also require permit holders to report the move- vironment issues among their strongest national ment or use of particular species, the results of objectives. The financial challenge of invasives monitoring and other information. typically involves a combination of seeking greater allocations of existing funding (typically Beyond these actions, the application of other through targeted awareness-raising at highest administrative powers can have a significant im- pact both as governmental enforcement and as an incentive, in many types of intentional/com- 161See SOUTH AFRICA Draft Water Legislation circulated in mercial introductions, including permission 2001. 52 Environment Department Papers Tools of National Implementation government levels) and finding new sources of volved, external NGOs and other bodies may be funds to address these objectives. willing to undertake invasives control measures as part of a broader license to operate protected areas or take other actions. Governmental Fundraising: Budgeting, Levies and Fees Application fees: Application fees offer another In general, proposals for funding and for legisla- mechanism for increasing agency funding.162 In tive measures to ensure the continuity of fund- many cases, however, there are legal provisions ing tend to omit mention of several key aspects limiting the amount of application fees, requir- which provide a strong limitation on funding ing that they be reasonable in comparison with efforts. The following are the primary funding the costs of processing the application. This mechanisms that have been proposed or are may be a relatively large sum, given the need being used in efforts to address invasive species, in many countries for a scientifically conducted including a brief analysis of the strengths and risk assessment, however, it will not provide weaknesses of each: any basis for funding other governmental activi- ties. Conversely, in many countries in which a Government subvention: Obviously, the first higher rate may be charged, there is often a legal source of funds is direct government subven- requirement that such fees be paid into a general tion. Typically, however, this is a relatively un- fund, or otherwise may not be retained by the dependable source of funding, particularly for agency charged with invasives control responsi- environmental and agricultural activities. Leg- bilities. ; islation to strengthen the central government's responsibility to fund programmes on an annual Levies based on pathways and other tax provisions: basis usually encounters one of two primary In several contexts, it may be relevant to impose problems--either it is highly controversial and a levy on species introducers in a generic way-- impedes or prevents passage of the legislation that is, as a levy on certain activities (without (where such provisions will be strictly inter- the need to identify specific invasive species preted and enforced) or it is loosely interpreted connections.)163 Industries that are known to as recommendatory language that can be involve particularly high levels of uncontrolled ignored (or supplanted) by the government in species introductions (such as the importation of dealing with the exigencies of its budgeting and ornamental plants, aquarium fish, aquacultural financial processes. systems, forest products, tourism, etc.) can be subjected to an additional assessment as part External (donor) funding: This option, while of the normal legal operation of the pathway.164 it cannot be expected to permanently fund Similarly, there are many situations in which ongoing activities, may be a means by which new taxing mechanisms are proposed for developing countries can fund the development purposes of increasing revenue for primary of capacity, creation and realisation of legisla- governmental services, including conservation tive frameworks, negotiation of subregional programmes and agreements, and urgent pro- 162See, e.g., CHILE Establece Normas De Ingreso De Material grammes to address critical existing invasives Biologico Y Deroga Resoluciones Que Indica (24 Sept. 2001). threats and to halt ongoing damage. In a few 163See, e.g., New Zealand, Biosecurity Act of 1993 cases, particularly where protected areas are in- 164Young, T., 1994 (Zanzibar) Biodiversity Series 53 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species activities.165 Tourism taxes and airport fees are ity to achieve the laudable objective of creating often proposed with these goals in mind. In gen- a stable source of funding for the conservation eral, so long as the additional assessment is not activities is still being investigated. Moreover, large it will operate as a fund-raising provision, regardless of whether this concept can have any rather than a deterrent to otherwise legal action. substantive value in practice,166 it remains true One issue to be addressed in this process will that the queue for sharing in such payments is be the fact that other ministries and regulatory long and growing.167 While many continue to systems may also feel justified in claiming some assert that this is a means of financing protected part of these funds. areas, programmes such as rural development, poverty alleviation, and forest certification, for Payment for environmental services and other example, are increasingly joining in the call, existing fund mechanisms: Additional gloss on suggesting that whatever funds may ultimately this approach can be found in the existence in be generated in this way may not be sufficient to some countries of environmental or agricultural meet expectations. `fund' mechanisms, under which donor funding or other directly provided sums are placed in It should be noted that some of these strategies a trust fund or similar arrangement, as a way are also thought of as enforcement mechanisms of ensuring that they are spent for particular ("promoting accountability."168) This raises an purposes, commonly including protected areas important point. In general, studies have shown or other environmental objectives, or specific that legal provisions relating to the payment of poverty reduction and livelihood improvement fees, taxes, and levies can have only one primary programmes. Similarly, some suggestions have purpose--either as a deterrent to some action recently been voiced that invasives programmes (promote accountability) or as a measure to raise in, for example, hydrological basins, might be funded out of programmes of `payment for 165See, Young, T., 1994 (Zanzibar) expected `tourist tax' cited environmental services'--a concept by which by several different ministries and agencies as a source of those who obtain the benefit of environmental funds to permanently address shortfalls. services (e.g., downstream water users who ben- 166The primary questions regarding environmental funds and payment for environmental services are basically the efit from upstream efforts to prevent riparian same. In essence, these provisions constitute diversions erosion, conserve (and refrain from developing) of existing funding in a majority of instances (even donor forested areas that protect the ground and sur- funding is generally thought to be a single pool of funds, whose disposition is alterable, but whose amount typically face water systems etc.) must pay for those ser- remains relatively constant.) Hence, where needs of other non- vices. Both kinds of funds have been proposed environmental sectors are seen as higher priority, governmental as possible sources of funding for invasives decisions creating funds or arrangements may sometimes be revised or rescinded by government without violating any law, programmes. and generally without any real penalty. IUCN Environmental Law Centre, 2004. In attempting to utilise these mechanisms to ad- 167The utilization of `Payments for environmental services' dress invasives issues, it will be necessary to ex- figures prominently in the planning of nearly every Sectoral Programme of Work under the Convention on Biological amine the purposes for which the fund was set Diversity, and have probably been mentioned as options for up. Before investing significant efforts in such every environmental, conservation and poverty relief program a system, it is necessary to also remember that, described in professional literature in the last 5 years. For an excellent discussion of this issue, see Pagiola, S., Payment for real examples successful and consistent fund Environmental Services, (World Bank, 2005). and PES mechanisms do not yet exist. Their abil- 168See, e.g., Shine, et al., 2000, at 83­4. 54 Environment Department Papers Tools of National Implementation funds. It is generally believed that a small tax or substantial fees assessed against those who seek low percentage increase in an existing tax will permission to introduce a new species. operate to increase funds, whereas a larger tax or levy will primarily deter persons from taking At a minimum, the user-pays concept provides the action associated with the charge. a classic financial incentive. By liquidating and assessing the costs of each user's activities to the user himself, the attractiveness of those activities Private Responsibility Provisions is also diminished. Hence, while these provi- (The `User Pays') sions may help reduce illegal behaviour, they are In addition to the direct need to fund govern- especially important as means of encouraging ment activities, and to enable governments to users not to take otherwise legal actions that are implement invasives controls and remediation, unsustainable or environmentally unsound. it is often appropriate to assess responsible individuals and companies for costs and dam- PERMITS AND COSTS ages, and to require them to undertake remedial Legislative provisions assessing permit fees that action. In some instances, these provisions serve more closely mirror the costs of permit review a dual purpose. On one hand they impose indi- and oversight are not new and are used in the vidual responsibility for commercially incurred context of species introductions in much the invasives risks that result in damage or invasion. same way as in other contexts.169 One important In addition, the knowledge of this possibility factor to be addressed in this use, however, is might deterr would-be introducers from taking the question of long-term oversight costs (and such risks without sufficient financial or practi- the possible need for reactive governmental cal justification. response long after the introduction), where the User pays approaches vary widely among permit is issued only once. These concerns may countries. Some countries (those with strong be the reason that some commentators have market-based approaches to legislation and im- proposed bonding and other unwieldy and plementation) view "user pays" as, effectively, a ineffective options to address user's responsibil- kind of civil liability provision, by which a user ity for financial costs of invasives programmes is strongly encouraged (by its own commercial (discussed below.) and financial imperatives) to prevent liability. Usually, his permit will state that he must DIRECT RESPONSIBILITY FOR REMEDIATION bear the costs not only of the resources he uses Another key element of most similar permit sys- directly, but of all unmitigated harms to other tems is the permit-based responsibility to take resources caused by that use. In order to avoid a immediate and effective remedial action. In the later assessment of both penalty for the violation context of species introductions, these respon- and costs of restoration of damaged resources sibilities include monitoring nearby lands and (or value of irrevocably lost resources), he will obtain a permit and take the necessary actions. Other countries recognise `user pays' as solely a 169See generally, BRAZIL Portaria n° 28­N (9 July 1991) cost distribution measure, calling for the permit (recognizing that when commercial interests are involved in permit or other regulated activity, then the costs of extra administration processes and other related governmental vigilance could rightly be charged to the governmental operations to be paid through company.) Biodiversity Series 55 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species waters for the presence of unintended shoots his land increases the natural use of ground or or seedlings of the introduced species, and to surface water.171 remove those that are found. To the extent that the invasion or its removal leaves an empty INSURANCE AND BONDING ARRANGEMENTS niche or causes other damage, the user will typically be required to remedy those damages Although insurance bonding arrangements have as well.170 One advantage or this approach is the been proposed for use in species introduction ability to `enhance' standard penalty provisions, situations,172 there are several reasons to suppose by adding the direct responsibility to pay the that they will have a minimal ultimate impact, costs of repair. In some instances, the alternative especially in developing countries. First, as a of paying the value of damaged resources is also practical, commercial matter, such approaches available. are difficult to impose unless they take the form of a lump sum payment by the introducer into This option may in some cases be selected by the a trust account held by the government. Surety- payer and in others be decided by law or by the based performance bonds are rigidly controlled relevant agencies. Where the choice rests with insurance arrangements, usually very specifical- the payer, it amounts to a liability limitation, ly tied to the particular factors of the particular so that the remedy will not be required if the action or condition being bonded. Consequently costs exceeds the value of the resources being the creation of a new kind of performance bond restored. The method for determining the value might require new regulations, even changes of the lost resources will be a major determinant in insurance law in some countries. In general, of the effective operation of that provision. If such a tool would only be proposed if a finan- the commercial value only is considered, the cially sound insurer was willing to provide such amounts involved may sometimes be relatively a bond. Given the potential costs of invasives low, and the option for avoiding restoration remediation and the difficulties involved in costs may be increased. If the environmental prediction of invasiveness, reputable non-gov- value is considered, the amounts may be cor- ernmental insurers may find this an unprofitable respondingly higher. On the other hand, if the offering. determination is made by government, it may be more even-handedly applied. 170For example, where the UNITED STATES government was LOSS maintaining a population of alien ungulates (including Mouflon OF ENVIRONMENTAL SERVICES sheep--considered a threatened or endangered species in As discussed above, current political theories their primary habitat) in Hawaii, and it was shown that these species were threatening one of the last habitats of the endemic focus on the possibility that governments and (and highly endangered) Palila bird (Loxioides bailleui, communities can receive `payment for envi- formerly Psittirostra balleui), a federal court held that they ronmental services' from forests, hydrological were responsible for eradicating these species. Palila v Hawaii Department of Land and Resources, 852 Fed. 2d 1106 (1988). basins, and other natural resources. One finan- 171SOUTH AFRICA, Draft Water Act, 2003. cial innovation that has been proposed is based 172Shine, et al., 2000, at 84. Hungary and Argentina reportedly on a reverse of this concept. In South Africa, a were proposing to require `mandatory insurance' against specific proposal has been adopted which as- certain activities including those that involve invasive species. Id. (although the author was not able to discern whether and sesses a charge based on `streamflow reduction' how these provisions would be used in the invasive species against the landowner, where an alien species on context.). 56 Environment Department Papers Tools of National Implementation Where a potential offeror exists, however, or special demands on existing diplomatic and where government proposes to serve as surety, practical mechanisms, however, due to the there are examples in other environmental areas urgency that may arise where a gap in border (such as surface mining, and hazardous waste control or other activities is enabling introduc- disposal), that might prove instructive.173 How- tions that may be difficult or impossible to track ever, there are further concerns relative to their down and remedy. use in invasives. Substantively, surety bonds of this type are typically focused on a kind of This challenge embodies two components. First, performance that will happen by a specific date it includes the need to develop and implement (i.e., site restoration after mining activities have international agreements at various levels from concluded), or where analytical testing can bilateral to global (a matter that is predomi- conclusively prove the absence of hazard as of nantly outside the scope of national legislation), the date that the bond-provider concludes the but also the frequently overlooked matter of bonded activities. While this kind of situation authorising and empowering urgent response might exist (such as in contained uses and con- and implementation-level coordination across trolled field trials), it will not apply to the major- national boundaries. ity of species introduction situations, where the risk being insured is the long-term risk that an Development/Implementation introduced species will turn out to be a `sleeper' of International Instruments demonstrating invasive qualities and causing damage many years after introduction. International cooperation efforts at present appear to be moving from the general to the Consequently, the requirement of surety bond- extremely specific. Most of the primary policy ing will have a limited applicability-- work appears to be complete, but essentially of- fers only the most generic of mandates. Thus, for · where the introductions are intentional and example, the Council of Europe's long awaited subject to permit; strategy simply encourages countries (i) to develop national invasive species strategies, · where there are specific observable charac- (ii) to cooperate with other countries, as appro- teristics to serve as the basis of insurance, priate, to prevent, mitigate, eradicate or contain and a date certain on which they should be invasive species, particularly through the shar- applied, ing of information, and (iii) to keep the CoE's Standing Committee aware of measures taken · where a surety or the government is in- in implementation of these mandates.174 The terested in subsidising or supporting the vast majority of invasives-related international particular activities being bonded. Transboundary Cooperation 173See, e.g., UNITED STATES Surface Mining and Restoration Act, and Resource Conservation and Recovery Act. Particular The final primary challenge--transbound- commercial and legislative issues in the application of bonding provisions under these laws are discussed in Machlin, J., 1988 ary cooperation--also involves laws and legal (updated.) principles that are generally already in existence 174COUNCIL of EUROPE "European Strategy on Invasive in most countries. Invasive species issues place Alien Species" Doc. T-PVS(2003) at 7. Biodiversity Series 57 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species instruments adopted to date, do not impose or of development and consistent international even recommend specific measures or any (man- implementation of standards whose acceptance datory or voluntary) provisions agreeing on the is sufficiently general among countries that it mechanisms for invasives control. At most these can withstand challenges in international trade instruments demonstrate the breadth of interna- tribunals. tional commitment to solution of the invasives issues currently of concern. Implementation-level Cooperation The most important recent work addresses Across Boundaries particular groups of pathway-related inva- As noted above, the CBD-COP has called on sives/invasions. In a few international instances parties to act `individually or cooperatively,' (including the Ballast Water Convention, the In- once the establishment of an invasive species ternational Commercial Aviation Organisation, has been detected--taking appropriate steps the IPPC and FAO Codex) these processes focus `such as eradication, containment and control, to on the development of standards and specific mitigate adverse effects."176 In many instances, requirements. In the main, however, current instruments call for public notice requirements trans-border work is happening subregionally to be accompanied by notice to nearby countries, or bilaterally between neighbouring countries particularly where the notice relates to invasive- or between trading partners. This bilateral work ness discoveries, new species introductions, and is often very specific, focusing on particular similar problems. species (usually reacting to serious known invasives problems), or on pathways that are Strictly domestic laws are also sometimes ad- believed to be the primary highway by which dressed at transboundary issues, such as the those species (and others) are being introduced. creation of special site monitoring provisions These instruments typically provide a regula- for border areas, to provide an indication of the tory level of detail and can be relatively easily possible spread of specimens across national translated into laws, regulations and adminis- borders.177 This raises the possibility that govern- trative practices. ment officials at ministerial and agency levels will need to interact closely and directly in order For purposes of legal implementation of inva- to respond to these risks. sives objectives, some of the most important international negotiations, however, relate to While these problems are not unique to inva- the relationship between species controls and sives control, they are frequently overlooked international trade law. These controversies are frequently phrased in terms of precau- 175Cooney, R., et al., 2004. tion focus on the intersection of the rights of 176CBD COP Decision VI/23 (UNEP/CBD/COP/6/23). importing states to protect against sanitary/ 177AUSTRALIA, for example, reportedly applies such phytosanitary hazards (on one hand) and of responsibilities to the Torres Strait, to monitor movement of species from New Guinea (Shine, et al, citing another report). exporting states to be protected against inap- The FAO Code of Conduct for Responsible Fisheries makes propriate `technical barriers to trade.'175 These this point, by not only calling upon parties to notify and/or negotiations carry perhaps the primary lesson consult neighbouring states in connection with introductions for aquaculture, but also to select species, aquaculture sites that international law offers drafters of inva- and management techniques, `with due respect to their sive species legal frameworks--the importance neighbouring States 58 Environment Department Papers Tools of National Implementation in legislative development.178 Recent valuable National legislation can contribute to this discussions arising out of the short-lived trend process, where the highest level parliamentary of donor attention to the creation of `trans- body180 specifically authorises direct contact boundary protected areas' have recognised that between focal points within national implemen- attempts to address primary natural resource tation-level agencies, including meetings and management activities that cross borders in informal or institutional planning regarding the form of individualised formal agreements species, ecosystem and other invasives-related are frequently inefficient uses of government planning. resources, in terms of In this area, the CBD Guiding Principles offer · the funding and manpower involved in rather specific suggestions, noting that the pro- those negotiations, visions for transboundary cooperation should include "Programmes [rather than formal · the long time needed to complete diplomatic agreements] to share information on invasive formalities for even the most minor of bilat- alien species... and invasion pathways, with eral or international instrument, a particular emphasis on cooperation among neighbouring countries, between trading · the necessary inflexibility of resulting instru- partners, and among countries with similar eco- ments, so that alteration of those instru- systems and histories of invasion; [as well as]... ments in response to changed or discovered cooperative research efforts and funding efforts circumstances may be impossible or engen- toward the identification, prevention, early de- der additional delays, and tection, monitoring and control of invasive alien · the necessity in such instruments to specify species."181 diplomatic pathways for actions consider- ing, implementing or amending any part of the required performances.179 178See Anton, M., 2002, for a discussion of the manner in which this same requirement has inhibited transnational These discussions have inevitably resulted in a implementation of wildlife trade controls, and the new broader recognition that, although the creation legislative and conceptual developments being recommended as means to overcome these traditional/diplomatic of more formal instruments of cooperation is not impediments. typically expedient, the empowerment of less 179InWeNT, Proceedings of the International High-level formal mechanisms, allowing natural resource Seminar on Transboundary Natural Resource Management management officials to coordinate their actions (Arusha Tanzania, 2003) 180I.e., the national parliament in adopting a law, rather than a and mandates to achieve shared or mutu- ministry or agency's inclusion of provisions in its regulations. ally recognised objectives, is indeed urgently 181CBD Decision VI­23, Guiding Principles, Principle 9(a) needed. and (d). Biodiversity Series 59 4 Legislating Invasives Control-- Challenges for Developing Countries Up to this point, this paper has attempted levels of action. Specifically, such a framework to maintain a few primary differences in must be based on approach from the survey-style analyses cur- rently available relating to invasive species · Actions at the policy level (risk determina- and legislation. It has not attempted to parse tions, distribution of authority, and identifi- legislation on a provision-by-provision ap- cation of a legislative strategy/approach); proach or to find or assert superficial similari- · Application of overarching principles (pre- ties between standard legislative approaches caution, polluter pays, ecosystem approach, across a variety of countries. It assumes that participation/access to information, and its readers understand the function of pri- risk/impact assessment); and mary provisions and seek to understand the basic operational differences that distinguish · Practical adoption of particular legislative invasives legislative issues from other natural tools. resource legislation. It has set out some of the scientific factors that impact the effectiveness This discussion does not attempt to provide of legislation relating to invasives, and lists a model for legislation, but rather to provide some of the specific tools that may help ad- advice for the adoption and coordination of dress the specialised concerns of development relevant legislation. of a legislative framework for the control of invasive species concerns. Primary (Policy) Decisions This Part considers the process by which The development of a national legal and ad- these facts and tools can be integrated into a ministrative framework addressing invasives framework for national legislation, with par- can be a highly complex matter, owing to ticular attention to particular application issues many factors--from the distribution of admin- relevant in developing countries. Even here, however, it does not take a section-by-section approach,182 but describes how a national or 182The author notes that section-by-section analysis varies sectoral framework is built from the primary greatly between countries, even when the particular provisions policy basis through the development of specific are facially similar. Moreover, section-by-section approaches tend to move through legislation from beginning to end, giving mechanisms and standards. This process, within the false impression that this is the order in which issues any country, requires several tools at various should be addressed. Biodiversity Series 61 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species istrative authority under national law, to the tal framework, but are embodied in core compo- level of decision-maker awareness of the full nents of primary legislation. breadth of the invasives issue. Like any other legislative framework or regime, a policy/law In virtually all countries, parts of components framework for addressing invasive-species (ii) through (v) and part (vii) (and sometimes is effective where it encompasses seven key also part (vi)) are addressed through some components: combinations of primary and secondary legisla- tion (variously known as `laws,' `acts,' `statutes,' (i) approval or endorsement of primary gov- `ordinances,' `decrees,' `regulations,' directives,' ernance objectives, including the level and `protocols,' `rules,' `by-laws,' `guidelines'.) The types of risk to be addressed, and those distribution between primary legislation and that are deemed acceptable; other instruments, can make a tremendous dif- ference and is very important to the framework (ii) selection of administrative mechanisms structure. Unfortunately, however, these distri- and/or approaches most suited to the bution matters (and their potential impacts) are technical problem and the particular primarily controlled by the overall structure of government's implementation capacity; each individual country's governance system. Consequently, it is unproductive to make (iii) authorisation and/or mandate for particu- `model' recommendations concerning these lar agencies, institutions and officials; choices, which must be addressed on a case-by- (iv) clear delineation of specific prohibitions, case basis. restrictions, permissions and obligations of For these reasons, it is preferable to examine the entities within the country, interaction of the functional components of the (v) development of a regulatory programme system, rather than discussing separately the or plan for direct implementation of the `policy,' `law' and `regulations.' Seen in this way, mechanisms and authorisations selected; the framework structural issues can be more easily examined. For example, regardless of (vi) communication of relevant facts to `on-the- how it is memorialised (in policy, in law, or in a ground' officials and the regulated public, decision not to adopt either), the first component and will clearly have a central role in the formation of the rest of the framework. Particular where it (vii) enforcement (protocols and procedures.) clarifies the relationships and priorities among governmental objectives and interests, proclaims Although all of these components are basically the level and nature of risk that can be thought essential, the manner in which they are imple- `acceptable' or `unacceptable' in this respect, and mented varies greatly from country to country. assigns primary responsibility for various as- For example, in many countries a formal `policy' pects of the issue, this first level of decision-mak- process addresses component (i) and at least ing is both a critical element in its own right and part of (ii), and may also make the primary deci- a primary essential foundation for the others. sions in component (iii). In other countries, no separate policy is used, however, these matters In this connection, this paper assumes that are still essential foundations of the governmen- invasives controls will be expressed through a 62 Environment Department Papers Legislating Invasives Control--Challenges for Developing Countries variety of regulation systems.183 Policy choices ing potential difficulties and inefficiencies where may be made separately for each such system, they or their impacts overlap. although, in the best case, all such decisions will be based on a central policy decision that might NATURE OF PRIMARY APPROACH create some bases for integration of approaches. As in all legislative practice, there is great variation among countries with regard to the Initial Policy Choices statement of objectives in national legislative/ While the scope of policy-level decisions and administrative frameworks. One somewhat analysis can never be truly specified, the combi- unusual problem arises very frequently with nation of the various factors described in this pa- regard to primary decision-making on invasives, per, suggest that the legal tools described in Part however. Often, invasives policy and similar III can only be truly effective if implemented on documents are relatively simple, enunciating a the basis of clear and direct guidance on three strong national policy in favour of the elimina- primary policy points: tion of invasive species (or "harmful species"), and prevention of further introductions of such · Nature of primary approach (i.e., the choice species. Such policy statements may sometimes of presumptions in addressing potential be based on a narrow view of the invasives is- invasives issues); sue. The following quotation from a noted GMO expert exemplifies the issue: · Level of risk that is `acceptable'; and "Although there are certainly links between · Distribution of responsibility for `acceptable IAS184 and biosafety, the point is well made that risks.' IAS are all about risks with no benefits, while GMOs (genetically modified organisms) have These primary determinations form a basis for perceived benefits."185 an overall system to be organised and on which the legislative or revision/integration process While clearly demonstrating the reason that can go forward. Where possible, it may be invasives policy is less controversial than GMO preferable for government to make these deci- policies, this statement also indicates a serious sions directly, on the basis of detailed analysis and deliberations. This may happen through the adoption of one or more formal policies, the 183A number of specific invasives laws examined in this paper were primarily sectoral in focus (See, e.g., BRAZIL Portaria development of an implementation or legislative n° 28­N (9 July 1991) (Specific invasives control legislation strategy, or the adoption of one or more cross- limited in scope to plants and forest products.) Although some cutting legislative instruments. It is recognised, commentators have suggested that multiplicity of regulation should be avoided, the author recognises that the reasons for a however, that a much of a country's necessary multiple approach extend beyond the single factor of invasives legislation is proposed and/or adopted sectoral- integration. Hence this paper assumes such approaches in most ly rather than waiting for such central decisions. cases, whether a single integrated law is developed or not. 184"Invasive Alien Species." In these instances, there is a greater chance 185Name withheld, the commenter is the head of a scientific that agencies will interpret their mandates in institution researching in the field of gene technologies, and divergent ways, and that, as a result, various was commenting in an electronic discussion in the course of pathways will be regulated inconsistently, creat- the GEF's global Evaluation of National Biosafety Framework Development Projects (2005). Biodiversity Series 63 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species underlying governance problem--invasive of invasives, and other control on alien species, species are perceived and governed as if they a rather detailed policy analysis is clearly re- are `illegal' in themselves (something innately quired. Such analysis must include an analysis harmful is easily forbidden.) The speaker (and of national policies, incentive, mandates and those who, like her, adopt this view of invasives motivations underlying relevant pathways (hu- controls) appear to limit the need to regulate man action), as well as an evaluation of national the actions underlying the introduction of such commitments under international instruments species or the motivations of those actions. (including especially regional and sub-regional Perhaps, most important, however, they may agreements and trade commitments) that may overlook the primary practical reality of the have relevance to invasives issues. invasives problem--the direct impact of an alien species (whether positive or negative) cannot be It is not difficult to identify the primary objec- assumed, but must be specifically determined, tives of invasives legislative frameworks, whether by regulatory action or on a case-by- although in many cases, it can be very difficult case basis.186 to reflect the full range of impacts and inter- governmental relationships. Thus, for example, This perception (that regulation of invasives many commentators suggest only environmen- need only affect the introduction of species tal objectives (protection of biodiversity against that are harmful) is widely held.187 As a result, a series of risks)189, without noting the impor- many existing national invasives policies do not tance of development, commercial, agricultural consider the full range of national objectives and and other objectives (e.g., to "promote safe intro- interests impacted by invasives-related legisla- duction of commercial species for food security," tion and implementation, nor do they address "development of economic opportunity," etc.) the need to assess the broad range of species in- These activities and their implementation can be troductions, in order to determine which require both positive and negative factors in invasives specific control measures. Although strongly decision-making, and can be both positively promoting the idea of unified decision-making and negatively impacted by introduced species. regarding invasives, the national strategy (or technical advice for development of invasives- related institutional frameworks) will not men- 186McNeely, et al., Global Strategy on Invasive Species (GISP, 2001) (stating that "every alien species needs to be managed as tion or recommend an analysis or stocktaking if it is potentially invasive, until convincing evidence indicates regarding relevant institutions and policies.188 that it presents no such threat.") This is a major omission. No matter what kind 187See, e.g., UNITED STATES (Minnesota) Exotic Species of legislative system is ultimately developed, it Act, Minn. Stat. § 84D,01(7) (regulating only `Harmful exotic species'--those non-native animal or aquatic plant species will be essential that legislators and implement- `that can naturalise and either (1) causes ... displacement of ing agencies are aware of how each sector can be ... native species in their natural communities; or (2) threaten natural resources ...."), and UNITED STATES (Wisconsin) impacted by any controls designed to limit intro- Aquatic Plants Law, Wis. Stat. § 23.24 (2)(b) (regulating duction of unassessed or unapproved species, or `Invasive aquatic plants', which refers to those that `have the to place restrictions or liability on those whose ability to cause significant adverse change to desirable aquatic habitat, to significantly displace desirable aquatic vegetation or actions result in such a species taking hold. to reduce the yield of products produced by aquaculture.) 188See, e.g., Shine, et al., Guide to Designing Legal Clearly, in order to adopt an affirmative pro- Frameworks on Alien Invasive Species, chapter 4. gramme including prevention of introduction 189See Shine, et al., at 4.4.1 (p. 43). 64 Environment Department Papers Legislating Invasives Control--Challenges for Developing Countries Accordingly, policy processes should attempt to tries. On one hand, the risks of introductions regularise the relationships among various min- may be greater in both financial and absolute istries and agencies charged with implementing value, given the importance of biodiversity to sectoral objectives. these countries. At the other side of the analysis, issues such as food security, poverty alleviation, and forest management are extremely serious in ACCEPTABLE RISK LEVELS many developing countries, and often directly The underlying objectives of invasives species dependent on species introductions, whether as law revolve around a combination of address- a consequence of donor insistence or for other ing the risk of harm and ameliorating harms reasons. Typically, a reactive approach will not already caused. The balance between avoiding be recommended, where the country lacks the risks and reacting to damage where risks are not ability to monitor changes in biodiversity and avoided is a primary determinant of how each even in agricultural lands. In addition ecosys- component of the invasive species framework temic concerns indicate that it may be extremely will function. Thus, for example, many systems expensive to undertake remedial activities once (particularly in developed countries with an invasive species has taken hold, and that the limited remaining endemic species and pro- chance of successful eradication may be sub- tected ecosystems) focus on addressing known stantially reduced.192 environmental risks.190 Such systems operate primarily in a `remediation-mode'--that is, their primary mandate is to react to harms that have been identified in fact. (See Box 3.) By contrast, the potential financial and social costs once 190See, e.g., EUROPEAN UNION (in Council Regulation (EC) invasives become established in an area prompt No 338/97 of 9 December 1996 on the protection of species many countries, to prefer an approach based on of wild fauna and flora by regulating trade therein (Official Journal L 061 pp. 0001­0069) 03 Mar. 1997, (focusing on avoiding (or at least balancing) risks, before spe- known invasives and situations in which harm has been cific harm can be caused.191 The level of risk that demonstrated in fact). In the UNITED STATES, acceptable risk is considered acceptable, whether on a sectoral levels are not expressed in any absolute terms. The national invasives strategy focuses on harm and damage to property and basis or determined overall, depends on a vari- commercial interests. Risks to biodiversity are not completely ety of factors, including the country's financial ignored, but are generally addressed through the Environmental Impact Assessment (EIA) process. and other ability to take remedial measures in 191BRAZIL Portaria n° 28­N (9 July 1991) (regarding the event that the risked invasion occurs, bal- introduction of plants and forest products, focuses on balancing anced against the social and economic value commercial with environmental interests); SOUTH AFRICA of the reasons behind the desire to introduce a Conservation of Agricultural Resources Act of 1983 (the sectoral law in the country containing the strongest provisions species. In order to provide functional guidance, relating invasives control. This act, not surprisingly, embodies however, national and institutional objectives a high level of potential risk acceptance, recognising three regarding invasives must be well understood categories of alien invasive plants (i) weeds (heavily regulated, as they are considered to pose a high level of risk, while and must provide some basis for addressing providing no value), (ii) invader plants with ornamental value their direct impact on other sectoral objectives (relatively strongly regulated due to the lower social value of the plants), and (iii) invader plants with commercial value and concerns. (which must be regulated in a way that does not deprive anyone of this value). This law focuses on agricultural and commercial For developing countries, the risk acceptance impacts and contexts, in addressing the value/risk relationship. issue is more difficult than for developed coun- 192IUCN ROSA, 2004. Biodiversity Series 65 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species DISTRIBUTION OF RESPONSIBILITY pathway legislation bears a strong relationship to Another policy element that must be decided in the situation and practices of the particular sec- an integrated system is the manner in which re- toral agency with access to the pathway and the sponsibility for the `acceptable risks' is distribut- individuals and entities regulated under it. Ac- ed. In particular, it is necessary to consider who cordingly, while there is a strong benefit in creat- will bear the responsibility to compensate harm ing a central policy to guide implementation, and remedy harmful conditions caused where a pathway-based legislation will typically be seen government decision has permitted species to be to be inevitable and preferable to developing a introduced (or other actions to be taken) which centralised system or institution to address this later prove to be harmful. In general, this deci- issue. The primary exceptions to the statements sion involves a balance between government re- made in the foregoing paragraph are found in a sponsibility (based on the government's primary small number of small island nations,194 in which role in regulating and protecting against harm) invasives issues are recognised to have a central and the responsibility of the introducer or other role in all aspects of the continued biological persons whose actions were involved. Often, vitality of the country. Even in these countries, distribution of responsibility questions are an- however, significant aspects of regulation are swered differently where the non-governmental governed by other laws and institutions. persons involved are commercial entities, and Many commentators, however, specifically where they are not. recommend a unified approach, often resem- bling a modified EIA process. Even where not Overall legal regime: Systemic components specifically recommending or favouring some and approach type of unified legislative development, many still recommend some level of de facto unification Perhaps the most frequently canvassed issue through the creation of a coordinating body to date relating to invasive species legislation consisting of representatives of all involved relates to the manner in which legislation and ministries and agencies, with specified powers implementing processes are developed, with and responsibilities. Such bodies are rather com- particular attention to whether a unitary (cen- monly found throughout developing country tral) or sectoral (distributed) approach is best governance,195 and particularly in the legislation with regard to the legislative structure of each developed or recommended through interna- country's framework.193 A few points regarding tional technical assistance over the past 20 years. this issue are thus merited, in order to achieve the objectives of this paper. 193See, e.g, Shine, C., et al. at 38-42; IUCN Guidelines, 2000, Part 9 (strongly and affirmatively recommending a unitary UNITARY APPROACHES AND SECTORAL approach (`a holistic policy, legal and institutional approach.') COORDINATION GENERALLY 194Especially NEW ZEALAND, through its biosecurity Regardless of each particular sectoral advisor's approach, consisting primarily of its Biosecurity Act of 1993, and Hazardous Substance and New Organisms Act of 1996. preferences, these choices are generally decided This approach has been closely followed in draft legislation in operationally in terms of factors intrinsic to the BAHAMAS and a few other countries. CUBA has taken an alternate approach amalgamating all legislation dealing with national governance principles, operational man- environmental safety issues (from invasives/GMOs to reactor dates, and needs related to institutional develop- safety) in a single institution. ment and authorisation. Moreover, sectoral and 195ICELAND The Nature Conservation Act, Art. 41. 66 Environment Department Papers Legislating Invasives Control--Challenges for Developing Countries In practice, however, such bodies often do not paralysis,' described above. There is some basis live up to their mandate, for a variety of reasons for supposing that the multi-sectoral nature of including the following the problem, and the perceived need to come to a single integrated response applicable in all sec- · the members are too low-ranked within tors may be contributing to the lack of prompt their respective agencies to make necessary progress on this important mandate. It may be commitments (in the coordinating body) counter-productive, therefore, to continue to or take necessary actions (in their respec- press the option of a unified or integrated ap- tive agencies), and they may tend to hoard proach. Sectorally, for example, a law addressing knowledge and information obtained; the spread of species along watercourses may use very broad definitions of `alien species' · the law specifies high-level membership, and `introduction,' and focus on processes for which may inhibit the necessary frequency involving the public in monitoring rivers and of meetings, and limit the amount of atten- lakes, and empowering remedial action. A sepa- tion given to the coordinating body's issues rate law, directed at the issuance of permits for within the agency or ministry; species introduction may utilise different defini- · the number of such bodies which must be tions, which more clearly identify the situations attended by each agency may be very large, in which a permit is needed, and focus on clear so that relatively low levels of attention can regulatory responsibilities. be given to reports and recommendations coming out of each one; SCIENTIFIC RESOURCES AS THE "INTEGRATING MECHANISM" · the actual authority of the body, regardless As noted at the outset of this report, however, of legislative provisions, is compromised by despite the frequently unrelated nature of the the need to get majority or supermajority pathways which (since they relate to human ac- agreement before taking action. tion) form the basis of legislation, there is one Operationally, however, the most important overarching similarity connecting the broad problem with either of these primary mecha- range of invasive species issues--the concept of nisms of coordination is the lack of an obvious invasiveness. While it is neither productive nor benefit to the agencies or processes from the even practical to speak of regulating invasive- coordination effort. Even where unified inva- ness, the scientific knowledge and characteristics sives legislation is in place, its lack of a compre- of invasiveness are relevant to all of the various hensive or consistent policy/planning process sectoral and other pathways of concern to the cre- for establishing priorities for action, and the fact ation of an invasive species control framework. that `each aspect [of the unified law] contains its Moreover, the various factors and characteristics own set of slightly different criteria for action,' addressed with regard to invasiveness are of have been identified as critical shortcomings.196 direct concern to all relevant agencies and sectors, even if the particular balances (of risk versus objective or benefit) differ widely among them. IN SUPPORT OF SECTORAL APPROACHES In the context of developing countries, it is 196Christensen, M. 2004, evaluating the `Weaknesses of [New worth reiterating the problem of `regulatory Zealand's] Biosecurity Act.' Biodiversity Series 67 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species These scientific factors, including reliable data funds (from donors or national coffers) for the on the various species and ecosystem char- development of relevant databases and sustain- acteristics most relevant to invasives-related able institutions that will continue to operate decision-making, have been strongly identified them after initial funding has expired. as a primary need for national implementation in most analytical materials reviewed for this Recognition/use of International paper. The lack of a coherent scientific process Guidance Documents and institution in (or available to) each country for applying them has been another strongly As noted above, a number of international, re- recognised weakness in national implementa- gional and other instruments provide guidance tion. Conversely, the small number of countries or embody commitments relevant to the imple- which have developed relevant databases and mentation of invasive species control legislation. scientific information systems addressing these In the main, however, these instruments are questions have expressed demonstrably fewer phrased in hortatory language, and represent criticisms relating to lack of coordination.197 particular perspectives on relevant issues. Their primary purpose is to mobilise national action This suggests that the intrinsic scientific con- and decision, including the decision to go for- nection among all invasives issues might be the ward with development, revision, or integration most appropriate basis for promoting integra- of a national framework to address invasive spe- tion and coordination among the sectors. Unlike cies concerns. Such action, however, occurs at the adoption of new documents or the creation the primary policy level, rather than in the leg- of additional committees, such an approach pro- islative drafting process. At the legislative stage, vides the agencies (and regulated members of then, international guidance documents should the public) with a sorely needed benefit, essen- be recognised as just that--`guidance'--rather tial to the functioning of their various legal re- than mandates, and used if and to the extent that gimes on species introduction. The collaborative they are appropriate to national circumstances. development of scientific facilities or databases could provide significant `value addition' to There is one exception to the conclusion of the the process of national regulation. By providing foregoing paragraph, however. One important only non-biased scientific analyses, these facili- potential value of such instruments is their ties could be used by all invasives-related agen- reflection of international commonly held prin- cies across the region, in applying their legal and ciples and standards--an aspect of international regulatory standards and decision-processes, agreement that can be particularly important regardless of the contents of those standards, when a country is called upon to defend its or of particular agency's mandate regarding species introduction laws in international trade acceptable levels of invasives risks. Of course, forums. This role can be enhanced where and to they would also provides a budgetary benefit over the long term, eliminating the need for each 197Countries like MEXICO and COSTA RICA which have agency to undertake separate needlessly expen- focused significant efforts over the past 15 years on developing sive and duplicative measures. these information resources, have identified other problems such as lack of enforcement and the need for inspection and laboratory funds and facilities, but have made significant This approach, however, requires a relatively inroads in adopting a collaborative approach among various long start-up time, as well as the commitment of ministries and institutions. 68 Environment Department Papers Legislating Invasives Control--Challenges for Developing Countries the extent that a significant number of national national trade instruments. In many cases, these governments formally recognise all or part of a instruments are sufficiently detailed to form the particular guidance instrument. basis of quickly adopted regulations, requiring only the relevant training of inspection officials Consequently, the clarification of international in order to bring them into operation. principles relating to invasives controls would seem to be essential. In this connection, some of Preparation for this type of regulation can usu- the most important direct guidance relating to ally be relatively simple in national legislation. invasive species policy approaches is found in Given the relative urgency of prompt implemen- the CBD's Guiding Principles for the Prevention, tation, when such a standard is adopted inter- Introduction and Mitigation of Impacts of Alien nationally and meets the policy and technical Species that Threaten Ecosystems, Habitats or needs of a country, it may be useful to give spe- Species. These principles are more balanced cial attention to the concepts of regulatory adop- in terms of recognising other governmental tion, examining which of legislative systems in priorities than their forerunners, but remain the country have the shortest and most effective true to their environmental roots in many provi- path from proposed regulation to adoption, and sions. Thus for example, the Guiding Principle integrate lessons from that system. 2 reflects a strong preference for prevention (allowing no introductions of invasive species), Application of overarching but express it in terms that recognise that until principles and processes a species has been proven to be invasive, but do so in terms of cost-benefit analyses, reflecting One group of issues that is frequently canvassed the fact that, before it has been determined to be in analyses of invasives legislation is the ap- invasive, a species whose characteristics are not plication of overarching principles (precaution, completely known may be introduced in order polluter pays, ecosystem approach, participa- to achieve other essential social, environmental tion/access to information, and risk/impact as- or economic objectives. The Principle also ties sessment) relevant to invasives. While in general risk-acceptance decision making to the need to international guidance on the application of provide for `early detection and rapid action... these concepts is well developed and generally to prevent establishment.' applicable, two of these overarching principles, precaution and risk/impact assessment present particular challenges for the development and Recognition/use of International Standards implementation of invasives legislation. Equally, or perhaps more important, are the roles of recognised international standards Precaution for the control of invasive species. Focused on involuntary commercial introductions (hitch- Precaution, although a long adopted principle, hikers in commercial products in international is still generally not understood. In its simplest trade), the standards developed under the IPPC, form it is simply a response to risk--as de- OIE, and various international trade agreements scribed in the CBD Guiding Principles note that (including bilateral agreements between trading `lack of scientific certainty about the various partners) are designed to satisfy the non-dis- implications of an invasion should not be used crimination requirements imposed under inter- as a reason for postponing or failing to take ap- Biodiversity Series 69 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species propriate eradication, containment and control a preambular provision) in three separate ar- measures,'198 One of the most controversial ticles.201 A number of countries have specifically aspects of invasives-related precaution--its relationship to global trade--is discussed above in Part II.F. The following discussion identifies Box 3: Precaution and Invasive Species in a few other aspects of precaution that should be the EU Biodiversity Strategy considered in species introduction legislation. The European Union, having recognised invasives as `one of the main recorded causes of biodiver- sity loss and... serious damage to economy and BASIC CONCERNS health'202 has addressed them in its 1998 Biodi- The issue of precaution remains somewhat un- versity Strategy,203 calling on the Community to clear, particularly when applied in the context of `appl[y] the precautionary principle... [through] natural resource management.199 In many imple- measures to prevent alien species cause detrimen- tal effects on ecosystems, priority species or the menting strategies, the concept is considered habitats they depend on and establish measures to apply to any uncertainty. Hence, if one is not to control, manage and, wherever possible, re- certain of the extent of harm caused to a specific move the risks that they pose." The EU's attempts to define more concrete mechanisms have so far ecosystem by removal of a quantity of biological occurred only through its Natura 2000 program material from that area, these approaches would (network of protected areas), and has begun dis- consider this a situation requiring `precaution' cussions of specific legislation.204 To date, Natura and assume that a conservative approach should 2000's invasives-related efforts have included be applied (minimising the amount of resource · updating the list of known invasive species that takings allowed.) In fact, of course, there is no pose an ecological threat to native flora and doubt about the existence of a risk in such a fauna, habitats and ecosystems within the EU; case--clearly the taking of biological material · promoting the exchange of information on leg- from an ecosystem risks some damage to one or islative measures and other experiences; and more elements of that ecosystem. This type of · participation in the development of international guidelines on invasives under the CBD. misunderstanding evidences the nature of some of the remaining uncertainties regarding the cor- The `known harms' focus suggests that legislative rect implementation of the principle. measures will primarily focus on known-harmful species (waiting for a species to demonstrate in- vasiveness), the primary pathways by which they The CBD Guiding Principles strongly call on have been introduced, and habitat remediation and parties to "[a]pply the precautionary approach restoration activities. [in the form set forth as Principle 15 of the Rio Declaration] in all efforts to identify and prevent unintentional introductions [and] decisions 198Guiding Principles 1 and 10.2. concerning intentional introductions,... [as well 199See generally, Cooney, 2005. Involvement in the production as] when considering eradication, containment of the detailed case studies described in this book is the basis and control measures in relation to alien species of the author's evaluation of this issue. 200Guiding Principles 1 and 10.2. that have become established."200 With regard to 201Cartagena Protocol on Biosafety, Arts. 1, 10(6) and 11(8). GMOs that are considered alien species a further 202Meeting of the European Council of Ministers of the mandate is found in the Cartagena Protocol, Environment, March 2002. which includes the precautionary principle as 203(COM (1998) 42 final) a direct commitment of the parties (i.e., not in 204Scalara, 2004. 70 Environment Department Papers Legislating Invasives Control--Challenges for Developing Countries attempted to adopt legislation relating to these within the first months or years following the requirements, including the EU (Box 3), which eradication. notes the essential tie between information de- velopment and precaution. Hence, questions of "scientific certainty" arise concerning whether the eradication action will be more harmful to people and biodiversity THE OTHER PRECAUTION-- within the area than leaving the species in AVOIDING THE `EMPTY NICHE' place or taking less intensive measures. At a Another side of precaution arises where action minimum, this suggests the application of the is proposed to eradicate invasive species that precautionary principle in another way with have already taken hold in an ecosystem. It is regard to invasive species--the need to take necessary in such instances to evaluate the im- measures to protect against harms that might be pact that the removal of species will have on the caused by the eradication and other remedial ac- remaining ecosystem. tions. While EIA may be one tool in this process, the relative unavailability and insufficiency of As noted above, invasiveness has many forms, scientific information and predictability may and may in some cases be recognised (or make such assessment unreliable. become problematic) only many years after introduction. Examples exist, for example of in- vasives remediation actions addressing species CURRENT PERPLEXITIES--PRECAUTION AND introduced two millennia ago.205 Consequently, INVASIVES IN CBD COP-6&7 it is undeniable that over time alien species will Beginning in 2002, at the 6th Meeting of the Con- have integrated into (and caused evolutionary ference of Parties to the CBD, the issue of pre- changes to) the ecosystems into which they caution has been identified as a particular point were introduced. There remain, however, a of controversy relating to invasive species. In variety of reasons for eliminating such species the final plenary of that meeting, one delegation from their adoptive homes, including the fact asserted eleventh-hour objections to the Guiding that modern transportation and other factors Principles, identifying the precaution language are influencing the ecosystem and the invader's of the Guidelines as the underlying reason for impact on it. In these remedial actions, the this formal challenge. Apart from the fact that question may arise whether the ecosystemic this language does not mirror the precaution impacts resulting from the removal of such a language in either the Cartagena Protocol or the long term visitor will be more harmful than Rio Declaration, the exact nature of the objection leaving the species in place.206 One of the most was not clearly stated. Owing to a procedural frequently mentioned of these concerns is the fear external influences and species may be 205A modern effort to eradicate viperine grass snakes (Natrix able to take advantage of the "empty niche" maura) from the Balearic Islands (specifically Majorca and left by the eradication of a species that has fully Minorca,) which are believed to have been introduced at the time of the Roman empire. Serra, 2003. usurped some particular place within the na- 206For two sides of this issue, see Lorvelec, 2003 (recording tive ecosystem. Logically, this determination, over a short term the `consequence of alien disappearance) and too, (1) depends on the particular qualities of IUCN-EARO, 2004 (examining the role of water fern (Salvinia the species and of the particular ecosystem un- molesta Mitch), water hyacinth (Eichhornia crassipes) and Nile cabbage (Pistia stratiotes) in Lake Naivasha where these der consideration; and (2) may not be apparent species are alien and have invaded that ecosystem.) Biodiversity Series 71 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species abnormality in the Chair's response to the countries and through various kinds of sectoral formal objection, the status of the final decision and general laws addressing civil and criminal adopting the Guidelines remains controversial. liability and responsibility.208 The suite of risk Attempts at COP-7 to resolve it indicated that analysis processes relating to GMOs and new the objection had shifted and now encompasses varieties of agricultural species form one of the a much broader range of trade issues, as well as most important and most broadly accepted cat- continuing to press the precaution question. egories of risk analysis, and are also perhaps the most directly relevant to invasives. At present, although the status of COP Decision VI-23 remains unclear, most delegations view The role of EIA in the control of invasives can be that the decision is generally accepted, with very strong, particularly in developed countries. the exception of the Guidelines, which are pre- As part of this analysis, the author surveyed all sumed to not be adopted. However, a complete litigation regarding or mentioning non-native, set of `Interim Guidelines' had been regularly alien or invasive species that has been formally adopted in COP-5 (2000) which are generally filed in the United States in the last 20 years. perceived to remain active pending the resolu- That survey identified dozens of cases, in which tion of the current controversy. As those Interim invasive species issues and risks were chal- Guidelines cover essentially the same material lenged through the EIA process.209 with essentially the same general contents, the above-described perplexities are thought to have EIA and risk assessment practices embody two delayed, but not curtailed the continued prog- important factors in invasives legislation. First, ress of the CBD and its Parties in addressing the the scientific mechanisms and risk assessment primary requirements of Article 8h of the Con- protocols are matters of direct and intensive vention--to `prevent the introduction of, control research and development aimed at develop- or eradicate those alien species which threaten ing precise and objective bases for determining ecosystems, habitats or species.' whether a species has become invasive. These mechanisms are equally desirable to industrial and commercial sectors as to government, given Environmental Impact Assessment the potential for direct civil (and even criminal) and Risk Assessment207 liability where an individual or company is Over the past 30 years, the tool of environmental found to have been responsible for the introduc- impact assessment (EIA) has come to be recog- tion of species that are later found to be invasive. nised as a primary mechanisms for addressing environmental concerns, through the systematic 207The distinction between EIA and risk assessment is identification of the potential impacts and the sometimes difficult to explain to those not working directly level of risk or certainty that they will arise in a with these concepts. It is probably not appropriate to embark on such a discussion in this paper, however, and the author particular proposed activity. EIA offers a flexible does not have access to an appropriately focused article or mechanism which enables the creation, design publication as a source of further explanation of this point. and analysis of `mitigation measures' designed 208Laws assessing or addressing hazardous substances, ultra- to minimise the possibility of negative impacts. hazardous activities, and strict liability, for example, form the `strict end' of the spectrum of personal responsibility laws, which runs from laws setting penalties and responsibility for Similar objectives are addressed by various negligence and oversight on the other end of the spectrum. `risk assessment' systems applicable in various 209Examples cited in note 150. 72 Environment Department Papers Legislating Invasives Control--Challenges for Developing Countries Second risk assessment whether undertaken in this paper can be made `self-enforcing'--i.e., on a case-by-case basis or more generically for can utilise a combination of legal incentives the purpose of developing or amending black, through which the regulated community itself white and grey lists, is a demanding process, will take the labouring oar in ensuring compli- requiring rigorous analysis of reliable data. The ance. Rather, each option calls for a combination development of a multi-purpose institution of technical, legal and administrative inputs or database directed at serving the scientific that can be costly in both human and financial and informational needs of the risk assessment terms. Even choosing which to invest in can be process can be an integrating factor creating a problematic. To some extent, therefore, national basis of common interest around which relevant policy-level decision-making will be most effec- governmental and civil society sectors can cre- tive in the form of a plan for future action, iden- ate a practical and mutually beneficial basis for tifying priorities and immediate needs as well as coordination. longer term requirements and objectives. One particular problem for nearly all less-de- Selection of particular legislative tools veloped countries relates to the relative discord Perhaps as a result of the financial and practical among OECD countries (basically between the magnitude of the task, many developing coun- United States and the European Union) over tries have been relatively slow to take primary environmental concerns affecting or caused/en- decisions for the implementation of invasives hanced by trade. In some instances (particularly objectives. This legislative procrastination has the `biosafety' and GMOs issues, but also com- been explained in a variety of ways, and is often mercial and packaging controls on other trade assumed to be a function of lack of awareness goods), differences and disagreements at the by governments--the assumption that `most level of the most developed (and generally larg- countries have not begun to develop legal in- est-consuming) countries can engender concerns struments to tackle the issue, probably due to an in developing countries regarding the impact underestimation of the dimensions and threats of selecting (and adopting policy aligning with) posed by invasive alien species.'210 Upon direct one side or the other. investigation, however, this characterisation The following pages briefly look at the basic does not appear to be correct. National interest tools and tool groups described in Part III, focus- in and awareness of invasive species issues ing only on those where there are particular are often very intense. In many cases, the most less obvious factors that may specially affect the significant obstacle is the lack of clear directions value or impact of the tool or the choice among for addressing the problem, and concern that tools, in developing countries. significant legislative and administrative efforts will not show marked positive outcomes. Identification As in many technical areas, a key issue of concern relating to each country's ability to ef- As with virtually all of the tools identified in this fectively implement invasives controls will be paper, the identification tools are not alternatives national capacity (human, technical/physical but can potentially be used in combination. With and financial.) Few if any of the current tools and options for invasives regulation described 210Scalara 2004, citing Shine, 2000. Biodiversity Series 73 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species regard to identification of alien and invasive the local ecosystems. Reactive approaches may species that must be subject to regulation, for not be the best option for developing countries, example, it must be noted that the list-based where the institutional capacity to engate in processes still require either standard-based permit oversight and general ecosystem moni- decision-making or application of a scientific toring capabilities may be somewhat limited. At predictive model, except that in this case the a minimum, these factors may suggest a need to standard will apply the selection of species to develop pre-screening mechanisms and apply be added to the list, rather than to the particular them as universally as possible, as an adjunct to case-by-case application. either list-based systems or predictive models. For purposes of selecting an approach, the pri- An advantage of a list-based system is that it mary problem with any current predictive mech- may be easier to train inspectors and customs anism is the fact that it's predictive ability is not officers regarding a specific list than a more gen- 100%. Existing predictive systems find it `harder eral prohibition on species introductions. Where to predict plants that will not invade than those it is possible to utilise a more specific model, a that would, meaning that the decision tree tars decision-based system may improve the basis the name of many plants that would be likely of regulation, but the more individualised ap- to behave well.'211 Conversely, in terms of their ability to catch true invasives, their success rate 211Baskin, 2002, at 133.Australia's `weed risk assessment' is always expressed in inconclusive terms (`like- methodology discussed above, has been tested both in theory lihood,' `probability' and/or `potential' of inva- and in practice, and the governmental system has concluded sion.) Consequently, such systems have been that the correlation between its results and real situations is high enough that it can be used as a primary methodology for castigated as "creating a false sense of security" evaluating intentional species introductions. Efforts to identify for policy makers.212 From the environmental invasive potential (focusing on `such red flags as the ability perspective, this means that decisions based on to reproduce or spread by means of vegetative growth such as stolons or rhizomes rather than seeds, the ability to grow such mechanisms may allow the introduction of rapidly in the juvenile stage or reach maturity rather quickly, species that eventually are proven to be harmful. or the ability to produce seeds that sprout without any pre- treatment' (See e.g., Reichard, Hamilton, 1997) have been At the same time, in trade terms, they are also pretty good predictors (catching 76% of known invaders). Per certain to give `false positive' results.213 Lonsdale, 2001, however, they appear to achieve this by being over-inclusive--producing an unreasonable number of `false There is one important problem in the use of positives.' Scalara, 2004, estimates that `the chance that an introduced species becomes a pest is about 1 out of 100" and predictive mechanisms in developing--the fact that `out of the number of species introduced to a given area, that they may not be utilised comprehensively. only 10% are likely to become naturalized and only 10% of "Blacklisting" processes tend to be reactive, these are likely to become invasive.' 212Simberloff, 1999. rather than proactive, with species being listed 213For example, the validity of the Australian WRA was only after they are proven to be invasive and established by testing the questions against 370 plant species harmful--something which occurs long after the already found in Australia. These included economic and problem can be eradicated or even effectively environmental weeds, as well as other useful plants (Pheloung, 1996; Pheloung, 2001). The system rejected 100% of the controlled.214 Similarly, the application of model- serious weeds it was tested against and 84% of the minor based invasiveness assessment systems is gener- weeds. It rejected 7% of non-weedy plants. ally not applied in all introductions, which again 214Note for example the Lacey Act, under which animal and fish species may be listed only when they have been suggests that a species may be given a `hard determined to be `injurious' through a federal administrative scrutiny' only after it is known to be invasive in rulemaking process. 74 Environment Department Papers Legislating Invasives Control--Challenges for Developing Countries plication processes may be more difficult to but also create a basis for addressing the serious implement. issue of domestic introductions from one ecosys- tem into another. Two additional points of caution should be men- tioned regarding the temptation to use another country's existing lists as `models' or starting Government Empowerment and Obligations: places for national legislative listing. First, of Enforcement and Remedial Action course, national and sub-national ecological In the area of enforcement and compliance, the factors form the primary basis for listing, and constraints facing developing-country legislative vary widely, even among countries that share and administrative officials are not noticeably a common boundary and appear ecologically different from those arising in other countries. similar in most ways. More important, however, However, many developing country governance many countries' existing list-based approaches frameworks embody a high level of ministe- evolved out of older systems whose creation did rial/regulatory separation among sectors and not focus on environmental impacts of the listed agencies. This can result in the inability to utilise species,215 and sometimes did not identify the one of the most effective methods for promot- particular reasons that must underlay the listing ing compliance--cross-linking permits so that decision very clearly.216 These systems form the a violation relating to invasives may threaten basis of the GISS recommendations on invasives an introducer's other commercially necessary control. In general, they focus on eradication permits and licenses. Consequently, one useful (destruction of listed weeds, wherever found on process in developing country legislative draft- public and private property) supported by the ing relating to invasives might be to negotiate prevention of any intentional introduction of mutually beneficial relationships among permit such species. In some places, these long-stand- issuing agencies, to enable permit linkage. ing systems have been extended to add lists of exotic species and invasives to the database of species that are controlled in this way. Financial Provisions To some extent, financial issues form a prob- Oversight/monitoring and Indicators lematic element of virtually all conservation legislation, and need not be discussed further in Oversight issues, and the problem of uninten- the context of invasives control legislation in de- tional introductions and small movements of veloping countries. However, in a few specifics, biological material without permits, are greatly financial measures suggested for northern and exacerbated by the porous borders and lower developing countries may not be appropriate levels of government scrutiny found in develop- ing countries. The need to find locally oversee- able `choke points,' where both intentional and 215Klein, Making a list, 2004, notes that most of these listings unintentional introductions can be monitored are based on their status as `detrimental' to agriculture. 216 (i.e., not to rely on border controls) appears to See e.g., the Lacey Act, which is the basis for most of the US's invasives control efforts at the federal level, which be a major requirement for successful invasives originally allowed listing any fish or wildlife that was `injurious control legislation. This `holy grail' of the legisla- to human beings or the interests of agriculture, horticulture, forestry or ... wildlife resources.' 18 U.S.C. § 42(a)(1). See, tive process would not only place regulation in also, Klein, Making a list, 2004 (describing this approach in a context that might be more easily carried out, the `Great Lake' states of the United States.) Biodiversity Series 75 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species in the developing-country context. Specifically, were negotiated through in-depth work at the surety bonding arrangements are generally less unit-director level from all SADC countries, and available and less dependable in developing particularly address the needs for trans-border countries, and quite expensive when purchased processes in addressing regional or sub-regional from a developed country insurer. This suggests invasive species problems and focus on practical that a bonding requirement for activities involv- and informal implementation needs. Unfortu- ing species introduction might operate as a de nately these provisions have not received the facto ban on those activities, in many places. necessary authority to become operational.219 Wherever it is necessary to provide information, Transboundary Cooperation notifications and other direct intergovern- Particularly where developing countries have mental contact between sovereign countries, `porous' national borders, many key decisions there are many legal and political issues and in any sub-region must be made multilaterally. problems that may arise. Mechanisms for ensur- For example, the decision to add a species to a ing prompt, factual and appropriate contact `white list' cannot be solely based on whether can become complicated by diplomatic issues. the species is native or has been naturalised in a Diplomatically and politically speaking, it may particular country. As recognised by the Global not be possible to enable free direct sharing of Invasive Species strategy, "Heightened aware- information between government agencies most ness of bioinvasions has developed at the same decentralised . Several kinds of mechanisms time that national have been implementing an exist, however, that may facilitate cross-border unprecedented round of global trade liberalisa- agency contact. Included among these are: tion agreements. These agreements have acceler- · the CBD's Clearinghouse Mechanism ated the worldwide movement of vessels, cargo, (CHM). It is important to recognise the and people."217 There is therefore, a serious need somewhat unrealised potential of the CHM to evaluate whether and when species move- as an information-sharing tool. Where for- ment must be permitted. merly, many countries virtually ignored the More broadly and informally, it must be noted CHM based on the logistical infrastructural that many implementation-level inter-country difficulties in connecting with the system communication issues are less problematic in developing countries. Among SADC countries, 217Baskin, 2002 at 7. for example, the sharing of information at the 218Official records of the SADC do not provide information on unit-director level is strongly facilitated through how many of the 22 protocols listed on its website (http://www. sectoral meetings. This accepted informality, sadc.int/index.php?action=a1001&page_id=protocols ) are in however, creates a different challenge--the lack force, however, a random in-depth examination of 7 of them found only 2 had entered into force. of direct action at the ministerial and plenipo- 219The SADC process of using lower level administrators as tentiary levels. Thus, although many regional primary negotiators of protocols may be the source of the protocols have been adopted by the SADC problem. In negotiations, many of these instruments have been converted from international documents (phrased in the Council of Ministers within the last 10 years, manner that sovereign countries and their parliamentary bodies very few have been sufficiently ratified in order can feel comfortable committing to) into strongly binding to enter into force.218 Several unratified protocols provisions, which mirror the drafting of national regulations, thereby creating potential for claims against countries failing to (including Wildlife Enforcement and Forestry) meet protocol obligations. 76 Environment Department Papers Legislating Invasives Control--Challenges for Developing Countries electronically, those problems have more governmentally pre-approved process for recently been addressed, in part by the short-cutting the red-tape with regard to improvement of electronic communications certain transborder official communications. in many regions, but also by direct efforts of the Convention Secretariat which has Small and Unintentional Violations developed (and will provide to any party re- quiring them) systems and tools (including As noted above, virtually none of the provisions regularly downloaded CD-ROM formatted described in Part III have any realistic chance of information) to enable the CHM to be a altering the behaviour or impact of the actions functional source of information-sharing. of most individuals and small businesses who unintentionally, unknowingly, or illegally intro- · The use of recognised nongovernmental duce alien species. As a consequence, most of organisations for intercession between gov- the tools and approaches described have found ernment officials at implementation levels. their greatest successes in addressing operations This approach is often possible because that are much larger than most commercial en- government officers who may be completely terprises operating in developing countries. interdicted from contacting their opposite numbers in a neighbouring country are Where large or financially significant commercial freely allowed to interact with NGOs. A enterprises which intentionally import non- good example of this type of relationship is native species will generally be aware of laws the role of TRAFFIC International acting as relevant to their operations, and will recognise a go-between in facilitating intergovernmen- the need to comply with the law as a cost of their tal cooperation on CITES implementation business operations, smaller enterprises, even and enforcement. TRAFFIC can provide an though large by developing country standards informal network enabling governments will not. Unlike the enterprises regulated in to share information on illegal transborder developed countries, many importing companies movement of specimens. Where government operating in developing countries are smaller, contacts might take weeks through official and thus less likely to trigger direct inspection, channels, utilisation of TRAFFIC enables a checking and reporting requirements at border wildlife control officer who has discovered crossing, transportation, marketing, and other that a shipment is moving internationally to elements of the movement of goods that may be get that information to his opposite number alien species (or are potential carriers of hitchhik- in the destination country before the air- ers). Most significant, large businesses regulated plane touches down. in developed countries are used to viewing them- selves as `deep pockets'--that is, they know that · The development of informal organisations if their actions cause harm to the government or to enable communication. An example to persons or commercial enterprises, they will of this is also found in wildlife trade law, be obvious targets for civil or criminal litigation where European prosecutors, who have to recover damages and penalties, because typically faced unendurable delays in their efforts to provide and obtain information re- (1) they will usually have sufficient financial garding transboundary crimes have formed resources to pay all or a significant part of a network by which they have developed a the damages involved, and Biodiversity Series 77 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species (2) any such violations can be expected to be · Directing primary responsibility to the repeated in future shipments, suggesting major or more directly regulated commercial that there is a greater long-term value in pathway by which the individuals obtain `teaching the lesson' that violations can be or transport the specimens--i.e., imposing costly in time and money. some level of accountability (including industry-wide assessments or the loss of By contrast, actions of small and medium-sized incentive or tax benefits) on the companies companies, and individual violations, often which sell the non-native species that represent a `one-shot' situation. The violator become invasive, in the event of future prob- may not know of the relevant law, or may not lems.220 These provisions should be carefully understand that the materials he is transporting drafted to avoid problems of proof or con- or releasing are covered by it. In some cases, flict with international trade agreements; small business and individual violators may be aware of the law, but willing to take the chance · Public awareness programmes (although of being caught, given that the percentage cited with tiresome regularity in environ- chance is small, and the time and effort involved mental contexts, such programmes are in permit compliance may be quite significant one of a small number of tools capable of (often taking nearly as long for a few specimens helping to minimise environmentally inap- as for a full container.) propriate behaviour); The question of how to deal with these small · Incentive programmes (and well publicised and unintentional violators is a serious one, disposal centres and other facilities) promot- but one without any completely satisfactory ing compliance with safety measures relat- enforcement solutions. In facing these issues, it ing to the most common unintentional or is important to keep them in perspective, both casual violations; in terms of the volume of violations and the level of risk posed. Hence, it may be appropri- · `Community conscience' programmes which ate to delay dealing with these perplexities until create incentives and increase the likelihood the primary processes are in place for dealing that small and non-commercial introduc- with (i) larger operations (such as agricultural tions and releases will be observed and seed importers) and (ii) industries that carry a reported. historically higher than usual risk of bringing Another interesting option is that of collabora- in invasives (especially, ornamental plant com- tion. A programme that links all landowners and panies, aquaculture industries, and aquarium rights-holders in a particular area, under a com- fish.) mon goal of controlling particular weeds and Once these primary pathways posing the great- other invasive species can serve a dual purpose: est threat have been addressed, it is currently possible to consider the adoption of legal tools 220 that may possibly prove useful in the broader One example is found in SOUTH AFRICA Conservation of Agricultural Resources Act of 1983, which imposes criminal process of addressing individual and small penalties on those who sell or otherwise disseminate seeds violators, including-- or parts of any species declared a `weed.'At § 5. In theory, at least, if the supply of such seeds diminishes, the extent of the problem may diminish as well. 78 Environment Department Papers Legislating Invasives Control--Challenges for Developing Countries · coalescing people whose commitment to · raising the profile of the issue within the weed control may be minimal owing to community.221 the knowledge that their individual efforts alone could never make any realistic differ- 221See, e.g., the Yellowstone County Integrate Weed ence in an area-wide problem; and Management program. Biodiversity Series 79 5 Conclusions--taking legislative controls to the next level Even if not a majority position, there are clear Each of the mechanisms and legislative ap- indications that in each country there is sig- proaches described in this paper can become the nificant interest in addressing invasive species subject of additional guidance, and the develop- problems. One aspect of this objective--which ment of a true `legislative toolkit'--a description has frequently been seen as an insurmountable of the various points and issues to be considered obstacle--is the need for an appropriate legal in crafting each element. This kind of direct as- framework. While the successful resolution sistance will be one more mechanism that can of this first problem does not guarantee that be of great assistance to countries in developing funding and political support will materialise, their frameworks for invasive species. it is undoubtedly an important component of ultimately achieving the objective. Biodiversity Series 81 Partial Bibliography of a workshop in Braunschweig, Germany, 22­26 September 2003 Anton, M., N. Draggfy, S. Pendry, T. Young., 2002, Proceedings of the International Expert Filbey, M., C Kennedy, J. Wilkinson, and J. 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Rules 2000 No. 181), Regional incorporating amendments up to SR 2003 Bern Convention on the Conservation of Euro- No. 354 pean Wildlife and Natural Habitats (Bern, BAHAMAS National Biosafety Strategy, Draft, 1979), 2005 Bern Convention `Action Plan on Invasive Alien BELGIUM Loi sur la conservation de la nature Species in Europe' (T-PVS (2001) 10) (12 July 1973) Bern Convention `Guidelines for eradication of BELGIUM (Walloon) Arrêté de l' Exécutif réglant terrestrial vertebrates: A European contribu- la mise en liberté dans la nature des espèces tion to the invasive species issue' (T-PVS animales non indigènes et leur introduction dans (2000) 65); les parcs à gibier en Région wallonne (29 Nov. Bern Convention, `Identification of non-native 1990) freshwater fish established in Europe, as- BELGIUM Arrêté royal visant la protection des sessing potential threat to native biological espèces dans les espaces marins sous juridiction diversity' (T-PVS (2001) 6.) de la Belgique (21 Dec. 2001) Helsinki Convention on the Baltic Sea (Helsinki BRAZIL Portaria n° 28-N (9 July 1991) 1974) BRAZIL Portaria n° 83-N (26 Sept 1991) Convention on the Protection of the Alps (1991) BRAZIL Portaria n° 108-N (6 Oct.1991) Convention on Great Lakes Fisheries between Canada and the United States of America BULGARIA Fish Husbandry Act (State Gazette (1967) No. 91/19.11.1982) Council of Europe, "European Strategy on Inva- CAMAROON Fixant Certaines Modalités sive Alien Species" Doc. T-PVS(2003) d'Application du Régime de la Pêche (Décret N° 95/413) 20 Jun. 1995 CANADA (New Brunswick) Fish and Wildlife Act, 2004, c.12, s.1, Chapter F-14.1 86 Environment Department Papers Conclusions--taking legislative controls to the next level CHILE Poder Ejecutivo (Ministerio de Economía, la Vida Silvestre (Decreto No. 26435 MINAE) Fomento y Reconstrucción) Reglamento De 1 Oct. 1997 Procedimiento Para La Importación De Especies Hidrobiologicas (Núm. 96) 26 Feb. 1996 COSTA RICA Decreto No. 29342 MINAE) 6 Feb. 2001 CHILE Reglamento de Internación de Especies de Primera Importación (Núm. 730) 28 Nov 1995 CUBA Regulaciones sobre la Diversidad Biológica (Gaceta Oficial 631/1996) 28 Nov. 1996 CHILE Establece Normas De Ingreso De Material Biológico y Deroga Resoluciones Que Indica (24 CUBA Resolución del Ministerio de Agricultura Sept. 2001) (Resolución Nº 330­99) 7 Sept. 1999 CHILE Establece Nomina De Especies Hidrobiologi- CZECH REPUBLIC Game Management Act cas Vivas De Importación Autorizada (Núm. (No. 449/2001) 27 Nov. 2001, incorporating 531) 05 Jun 1992 amendments through 59/2003 COLOMBIA Por el cual se reglamenta el Código ECUADOR Expedir las Siguientes Normas Para la Nacional de los Recursos Naturales Renovables Instalación y Funcionamiento de Granjas Aví- y de Protección al Medio Ambiente y la [Ley 23 colas en la Provincia De Galápagos (Resolución de 1973] en materia de fauna Silvestre (Decreto No. 034) 4 Oct. 2002 No.1608) 31 Jul. 1978 ECUADOR Texto Unificado de Legislación Ambien- COLOMBIA Resolución por medio del cual se tal (Decreto Ejecutivo No. 3399) 28 Nov. 2002 autoriza la introducción al país de la langosta EL SALVADOR Ley de Conservación de Vida Sil- de agua dulce Cherax quadricarinatus especia vestre (Decreto No. 844) 14 Apr. 1994 foránea, exótica, no nativa, o alienígena que será importada en estado larval y/o juvenil de los Es- ESTONIA Approval of Legal Acts Established tado Unidos de América. (Resolución No. 1186) Pursuant to the Seed and Plant Propagation 1 Nov. 1996 Material Act and the Forest Act (Regulation No. 66/1999) 7 July 1999 COLOMBIA Resolución por la cual se señalan las especies de peces que se pueden aprovechar como EUROPEAN UNION Directive on the conserva- ornamentales y las que no admiten tal aprove- tion of wild birds, Directive 79/409/EC. chamiento (Resolución 80/28 Nov. 1991) EUROPEAN UNION Council Directive on the COLOMBIA Ley por la cual se dictan normas para conservation of natural habitats and wild el manejo sostenible de especies de Fauna Silves- fauna and flora, Council Directive (92/43/ tre y Acuática (Ley 611 de 2000) 17 Aug 2000 EEC) CONGO Définissant les Conditions de la Conserva- EUROPEAN UNION Commission Regulation tion et de L'exploitation de la Faune Sauvage (EC) No 349/2003 of 25 Feb. 2003 suspend- (Loi No. 48/83) 21 Apr. 1983 ing the introduction into the Community of specimens of certain species of wild fauna COSTA RICA Reglamento a Ley de Conservación de and flora (Official Journal L 51) 26 Feb. 2003 Biodiversity Series 87 Legislation for Promotion and Support to the Prevention, Control and Eradication of Invasive Species EUROPEAN UNION Commission Regulation ICELAND The Nature Conservation Act (No. (EC) No 776/2004 of 26 Apr. 2003 amending 44/1999) 22 March 1999 Regulation (EC) No 349/2003 suspending the introduction into the Community of MARSHALL ISLANDS Endangered Species Act specimens of certain species of wild fauna 1975 (Title 8 Cap 5) and flora (Official Journal L 51) 26 Feb. 2003 UNITED STATES Executive Order 13112 of Feb- EUROPEAN UNION Commission Regulation ruary 3, 1999 (EC) No 252/2005 of 14 Feb. 2005 amending UNITED STATES (federal), the Lacey Act, 18 Regulation (EC) No 349/2003 suspending USC · 42 and 16 USC ·· 3371, et seq. the introduction into the Community of specimens of certain species of wild fauna UNITED STATES (federal), the Plant Protection and flora (Official Journal L 43/3) 15 Feb. Act, 7 USC ·· 7701, et seq. 2003 UNITED STATES (federal), Animal Health Pro- EUROPEAN UNION Council Regulation (EC) tection Act, 7 ·· 8301, et seq. No 338/97 of 9 December 1996 on the pro- tection of species of wild fauna and flora by UNITED STATES (federal) Alien Species Pre- regulating trade therein (Official Journal L vention Enforcement Act, (Pub.L. 102-393) 061 pp. 0001­0069) 03 Mar. 1997 amending Title 39 of the U.S. Code. EUROPEAN UNION Council Decision of 3 UNITED STATES (federal) National Invasive December 1981, on the completion of the Species Act, 16 U.S.C. ·· 4701, et seq. (ad- convention relative the the conservation opted June 2002, addressing ballast water of wildlife in the natural environment of exchange only.) Europe (82/72/CEE, Journal officiel n° L 038 p. 0001­0002) 10 Feb. 1982 Other United States laws touching on invasive species controls, as well as bills before the FRANCE Loi en eu douce et à la gestion des res- US Congress as of August 2004 are sum- sources piscicoles (Loi n° 64­512) 29 Jun. 1984 marised in Klein, Filling the Gaps, 2004. FRANCE Décret fixant les conditions d'autorisation d'introduction dans les eaux visées à l'article 413 du code rural de poissons, de crustacés et de grenouilles appartenant à des espèces qui n'y sont pas représentées (Décret n° 85-1307) 9 Dec. 1985 88 Environment Department Papers