Ecological Restoration and International Law

by

An Cliquet, Afshin Akhtar-Khavari

• LAST MODIFIED: 28 August 2019
• DOI: 10.1093/obo/9780199796953-0192

Introduction

The concept of remedies has always been an important component of the legal system. Throughout the world, countries have utilized environmental law in a variety of ways to legislate for the remediation and rehabilitation of destroyed or degraded land and ecosystems. For example, in some countries, environmental law has provided for the remediation of contaminated mine sites, which can rather be classified as environmental restoration. However, often these countries have yet to properly enforce such law. Furthermore, given the significant increase in anthropogenic harm during the past few decades, there is an increasing realization that more needs to be done than simply acting to protect an environment from harm. Unlike the terms “rehabilitation” and “remediation,” the term “restoration” is drawn from the science of restoration ecology. The Society for Ecological Restoration (SER) defines ecological restoration as “the process of assisting the recovery of an ecosystem that has been degraded, damaged, or destroyed.” Ecological restoration contributes to the application of the ecosystem approach. There are different approaches to ecological and ecosystem recovery, such as rewilding or extreme forms of restoration such as “de-extinction.” This is due to the inherent complexity of assisting nature to recover from anthropogenic harm. Ecological restoration is the most prominent practice among ecologists to restore ecosystems, but is not the only approach. The main focus here will be on ecosystem restoration. “Restoration ecology” is the broad name for the scientific discipline behind ecological restoration and other recovery initiatives, and is a relatively new but rapidly developing branch within the study of natural sciences. Even more recently, there has been increasing legal attention to ecological restoration. There is no separate instrument in international law dealing with ecological restoration. However, legal obligations for restoration can be found in various multilateral environmental agreements, regional conventions, regional instruments such as European Union (EU) directives, and soft law instruments. The 1992 Convention on Biological Diversity (Biodiversity Convention) is an important convention outlining State party obligations for ecological restoration, as can be seen in both the Convention text and subsequent Conference of Parties decisions, including the 2010 Aichi Targets, which detail a specific target for ecological restoration. Prior to the Biodiversity Convention, the international community utilized the 1971 Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention) to introduce the concept of restoration. Other conventions that address ecological restoration or species restoration include the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals (Convention on Migratory Species), and several of its additional agreements. Climate change poses both opportunities and additional challenges for restoration. Restoring ecosystems such as forests and peatlands assists in the reduction of carbon in the atmosphere. Within the framework of the United Nations Framework Convention on Climate Change (UNFCCC 1992) and the 2015 Paris Agreement, the role of restoration has been recognized. As various conventions and soft law instruments now impress obligations of restoration, the legal duty to restore the environment has matured into a customary obligation and can be considered as an emerging legal principle. However, most instruments containing legal obligations for restoration do not contain a clear definition or further clarification on how a State party might restore an ecosystem.

General Overviews

There are a number of general textbooks, book chapters, and journal articles considering ecological restoration and international law. The most comprehensive source is Telesetsky, et al. 2017, which contains a systematic overview of ecological restoration in international environmental law, including soft law, multilateral environmental agreements, regional and national instruments, as well as more thematic areas, including restoration and protected areas, and restoration and climate change. Cliquet 2017 also provides a brief overview of restoration in international law and policy. Restoration encompasses many different aspects, several of which have been brought together in the edited book Akhtar-Khavari and Richardson 2019. Bastmeijer 2016 addresses how ecological restoration is an answer to the ongoing degradation of nature, for which conservation strategies and laws no longer suffice. Cliquet 2019 suggests some solutions to advance ecological restoration in the Anthropocene. Other sources consider how ecological restoration law is seen as a new paradigm, as in Schoukens 2015, and an emerging legal principle in environmental law, as in Telesetsky 2013a. Richardson 2016 considers the age of ecological restoration law. Telesetsky 2013b and Hayes 2002 also address the shift from rather limited restoration activities (e.g., remediation) toward ecological restoration at the landscape level.

• Akhtar-Khavari, Afshin, and Benjamin J. Richardson, eds. Ecological Restoration Law: Concepts and Case Studies. Abingdon, UK: Routledge, 2019.

  This edited book aims to deepen scholarship on ecological restoration law in order to better understand restoration methods, goals, achievements, and other foundational dimensions. It offers critical and conceptual insights into a variety of themes that permeate restoration governance, including its spatial and temporal properties, the role of science, social justice and community participation, and other issues across a diversity of jurisdictions.

• Bastmeijer, Kees. “Ecological Restoration in International Biodiversity Law: A Promising Strategy to Address Our Failure to Prevent?” In Research Handbook on Biodiversity and Law. Edited by Michael Bowman, Peter Davies, and Edward J. Goodwin, 387–413. Cheltenham, UK: Edgar Elgar, 2016.

  This book chapter analyzes several multilateral environmental agreements. It argues that the relevant conventions predominantly focus upon preventive measures; however, the conventions have little effect in limiting damage to biodiversity. The author suggests that ecological restoration is a promising strategy to address the failure to prevent damage in international biodiversity law.

• Cliquet, An. “International Law and Policy on Restoration.” In Routledge Handbook of Ecological and Environmental Restoration. Edited by Stuart Allison and Stephen Murphy, 387–400. London: Routledge, 2017.

  This book chapter is contained within a general handbook on ecological restoration. It provides a brief overview of restoration in international legal and policy instruments, including the Biodiversity Convention and subsequent decisions under this Convention and other global conventions, and initiatives to restore forest ecosystems.

• Cliquet, An. “Ecological Restoration as a Legal Duty in the Anthropocene.” In Charting Environmental Law Futures in the Anthropocene. Edited by Michelle Lim. Singapore: Springer, 2019.

  This book chapter addresses the (legal) challenges posed by the Anthropocene for ecological restoration. The chapter proposes possible ways to advance ecological restoration in the Anthropocene, including the development of more concrete legal duties and standards for restoration, possibly embedded in a new global legal initiative, such as a Global Deal for Nature.

• Hayes, David J. “Land Conservation and Restoration: Moving to the Landscape Level.” Virginia Environmental Law Journal 21.2 (2002): 115–128.

  This article discusses the idea of restoration as an extension of the conservation ethic. It suggests that a focus on restoration will assist efforts to move beyond traditional environmental law approaches. In particular, the article describes three significant and well-funded US projects intended to achieve important restoration goals for the country.

• Richardson, Benjamin J. “The Emerging Age of Ecological Restoration Law.” Review of European, Comparative & International Environmental Law 25.3 (2016): 277–290.

  DOI: 10.1111/reel.12165

  This article discusses the growing need to consider restoration law. It argues that, so far, most examples of restoration governance in our legal systems can be described as “environmental” restoration. Although ecological restoration is still in its infancy, there are interesting legal innovations. The article describes four criteria that are required in order to achieve successful ecological restoration governance: biological feasibility, social acceptability, financial viability, and institutional tractability.

• Schoukens, Hendrik. “Ecological Restoration as the 21st Century Environmental Paradigm.” In Policy within and through Law. Edited by Jan De Bruyne, Michaël de Potter de ten Broeck, and Isabelle Van Hiel, 63–86. Antwerp, Belgium: Maklu, 2015.

  This book considers the international policy targets on restoration. It further examines the subsequent targets that were established at the level of the EU, as well as the legal framework of the EU on ecological restoration. It concludes that restoration is a new paradigm in the context of environmental policy.

• Telesetsky, Anastasia. “An Emerging Legal Principle to Restore Large Scale Ecoscapes.” In Rule of Law for Nature: New Dimensions and Ideas in Environmental Law. Edited by Christina Voigt, 175–190. Cambridge, UK: Cambridge University Press, 2013a.

  DOI: 10.1017/CBO9781107337961.014

  This book chapter analyzes ecological restoration as an emerging principle of law. In its current application, the principle has failed to restore ecosystem functions. The chapter argues that a new principle of restoration of large “ecoscapes” is required, based on principles of nonregression and ecological integrity.

• Telesetsky, Anastasia. “Ecoscapes: The Future of Place-Based Ecological Restoration Laws.” Vermont Journal of Environmental Law 14.4 (2013b): 493–548.

  DOI: 10.2307/vermjenvilaw.14.4.493

  This article examines the current practices of state-mandated environmental restoration including, primarily, mitigation efforts and ecosystem service revival. This paper argues instead for a large landscape approach to environmental restoration. Focused on the inherent value of distinct landscapes to people, this paper introduces the concept of the “ecoscape” as an alternative to the current inadequate regime of piecemeal restoration.

• Telesetsky, Anastasia, An Cliquet, and Afshin Akhtar-Khavari. Ecological Restoration in International Environmental Law. London: Routledge, 2017.

  This is the first book to comprehensively examine the relationship between international environmental law and ecological restoration. In arguing that States have an international duty to restore, this book offers reflections on the philosophical context of ecological restoration and the legal content of a duty to restore from international, EU, and national law perspectives. The book concludes with a discussion of several contemporary themes, including the role of private actors, protected areas, and climate change in ecological restoration.