Border Fences and their Impacts on Large Carnivores, Large Herbivores and Biodiversity: An International Wildlife Law Perspective

• Date: 01 November 2016
• Author: Jennifer Dubrulle,Floor Fleurke,Arie Trouwborst
• Published date: 01 November 2016
• DOI: http://doi.org/10.1111/reel.12169

Border Fences and their Impacts on Large

Carnivores, Large Herbivores and Biodiversity: An

International Wildlife Law Perspective

Arie Trouwborst,* Floor Fleurke and Jennifer Dubrulle

Fences, walls and other barriers are proliferating

along international borders on a global scale. These

border fences not only affect people, but can also have

unintended but important consequences for wildlife,

inter alia by curtailing migrations and other move-

ments, by fragmenting populations and by causing

direct mortality, for instance through entanglement.

Large carnivores and large herbivores are especially

vulnerable to these impacts. This article analyses the

various impacts of border fences on wildlife around

the world from a law and policy perspective, focusing

on international wildlife law in particular. Relevant

provisions from a range of global and regional legal

instruments are identif‌ied and analysed, with special

attention for the Bonn Convention on Migratory

Species and the European Union Habitats Directive.

INTRODUCTION

The last few decades have witnessed a proliferation

of security and other fences along jurisdictional

boundaries across the globe, culminating in the

recent, hasty construction of border fences by several

European countries to stem refugee f‌lows.

1

Besides

their intended consequences for people, it is becom-

ing increasingly clear that border fences have unin-

tended consequences for wildlife as well. Such fences

can inter alia curtail animals’mobility, fragment pop-

ulations and cause direct mortality. Large carnivores

and large herbivores are especially vulnerable to these

impacts.

This article analyses the various impacts of border

fences on the natural environment from an interna-

tional wildlife law and policy perspective. First, it high-

lights and illustrates the surprisingly severe and

pervasive impacts of border fences on wildlife around

the world. This exercise reveals that, from a wildlife law

and policy point of view, border fencing is all but a

marginal issue, despite the scant attention paid to this

topic in the scholarly literature so far. Subsequently, the

article identif‌ies and discusses a range of relevant inter-

national legal instruments, paying attention both to leg-

ally binding obligations and their interpretation, and to

non-binding guidance. Separate, detailed analyses are

devoted to two particularly signif‌icant regimes, namely

the legal framework of the Bonn Convention on Migra-

tory Species (CMS)

2

and its subsidiary instruments,

and the European Union (EU) Habitats Directive.

3

The

article’sf‌inal section contains concluding observations

and recommendations.

BORDER FENCING AS A WILDLIFE

LAW AND POLICY ISSUE

The construction of barriers along borders is a long-

standing practice, from the Great Wall of China and

Hadrian’s Wall to the present day. Besides the high-

prof‌ile fences along the United States (US)/Mexico,

North/South Korea and Israel/West Bank borders,

fences currently separate Malaysia and Thailand, India

and Pakistan, Iran and Iraq, China and Mongolia, and

Botswana and Zimbabwe, to provide a small sample.

Whereas the global amount of border fences brief‌ly

stagnated in the years following the fall of the Berlin

Wall, the terrorist attacks of 11 September 2001 her-

alded a stark increase of border fence construction pro-

jects that continues to date.

4

Most recently, hundreds of

kilometres of fences were hastily erected along external

and internal EU borders to stem refugee f‌lows. A recent

estimate puts the total length of border fences in Eura-

sia alone (not counting the Middle East) in the order of

a staggering 30,000 km.

5

*Corresponding author.

Email: a.trouwborst@tilburguniversity.edu

1

The term ‘fence’ is used in this article in a broad sense, as encom-

passing fences in a narrow sense as well as walls and other artif‌icial

barriers.

2

Convention on the Conservation of Migratory Species of Wild

Animals (Bonn, 23 June 1979; in force 1 November 1983) (‘CMS’).

3

Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural

Habitats and of Wild Fauna and Flora, [1992] OJ L206/7.

4

E. Vallet (ed.), Borders, Fences and Walls: State of Insecurity?

(Ashgate, 2014); R. Noack, ‘These 14 Walls Continue to Separate the

World’, The Washington Post (11 November 2014).

5

J.D.C. Linnell et al., ‘Border Security Fencing and Wildlife: The End

of the Transboundary Paradigm in Eurasia?’, 14:6 PLOS Biology

(2016), e1002483; see in particular Table 1 and Figure 3.

ª2016 The Authors. Review of European Comparative & International Environmental Law Published by John Wiley & Sons Ltd

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291

RECIEL 25 (3) 2016. ISSN 2050-0386 DOI: 10.1111/reel.12169

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Review of European Community & International Environmental Law

International law does not preclude States from con-

structing border fences on their own territories, save

when said construction would under the circumstances

violate particular international obligations of the State

involved,

6

for instance under human rights law, migra-

tion law or indeed international wildlife law. The latter

f‌ield is aimed at the conservation of wild f‌lora and

fauna, the ecosystems they compose and biodiversity at

large. The relevance of this legal discipline to border

fences might at f‌irst sight seem to be marginal at best.

Yet, a recent increase in attentionfor the impacts of bor-

der fences on the natural world in the conservation biol-

ogy literature warrants a serious examination of the role

reserved for international wildlife law in this regard.

Usually, border fences are built to keep people out, such

as armed forces, terrorists, drug smugglers, economic

migrants and refugees. Sometimes, they are built to

keep people in as well, as with the Iron Curtain. A fence

may, furthermore, be intended to mark a border or to

reinforce a territorial claim. Only in exceptional cases

have border fences been intended to impede the move-

ment of (wild or domesticated) non-human creatures.

Reportedly, in 2008 the authorities of a Chinese district

of the Inner Mongolia region erected a 100 km fence

along the border with Mongolia in order to stop wolves

(Canis lupus) from crossing over into China and

devouring local livestock.

7

Likewise, Botswana’s pri-

mary stated purpose for erecting a 500 km fence along

the Zimbabwean border in 2003 was to keep out cattle

infected with foot and mouth disease,

8

repeating prior,

smaller-scale veterinary cordon fencing projects along

the Namibian border. At any rate, in almost all cases,

the impacts of border fences on biodiversity are unin-

tended by-products. These impacts, however unin-

tended, can be signif‌icant. Border fences can block or

hamper animals’movements and can also injure or kill

animals attempting to cross. The various types of

impacts are concisely discussed below.

Of course, regular (non-border) fences and other linear

infrastructure such as highways, railroads, pipelines,

cables and canals, can also hinder or harm wildlife.

9

For

instance, the world’s longest fence is not a border fence:

the 5,614-km-long Dingo Fence built across Australia in

the nineteenth century to protect domestic sheep from

predation by dingoes (Canis dingo).

10

Besides, many

fences around the globe have been erected expressly for

wildlife conservation purposes, for instance to keep

poachers outside and animals safely inside of protected

areas.

11

Nevertheless, the present article focuses exclu-

sively on border fences, for various reasons. For high-

ways, railroads and similar infrastructural projects,

impacts on biodiversity are often considered as part of

the planning process, and mitigated through measures

like animal crossing structures or wildlife-friendly fence

design. For border fences, things tend to be different.

Whereas they, too, may cut through wildlife habitat over

huge distances, border fences are meant to be impene-

trable –for people, to be sure, but as a consequence also

for many animals, especially large-bodied ones –and

wildlife overpasses are generally incompatible with this

purpose. In addition, the construction of border fences

tends to be motivated by security concerns that are con-

sidered paramount over most other considerations.This

means that any potential impacts on wildlife may not be

contemplated in decision making, or simply be taken for

granted. Thus, national environmental legislationwhich

might impede or delay a border fence’s construction

may be inapplicable, overruled or just ignored, to the

effect that no environmental impact assessment (EIA)

or strategic environmental assessment (SEA) is made

and protected species legislation is not applied. A strik-

ing example is offered by US federal legislation adopted

in 2005, which sidelines all environmental laws, such as

the Endangered Species Act (ESA), which might inter-

fere with the construction of the Mexican border fence:

‘The Secretary of Homeland Security shall have the

authority to waive, and shall waive, all laws such Secre-

tary, in such Secretary’s sole discretion, determines nec-

essary to ensure expeditious construction of the barriers

and roads under this section.’

12

Added impetus for writing this article was provided by

the recent f‌lurry of border fence construction in Europe

in response to the inf‌lux of refugees from Syria, Iraq

and Afghanistan, and other migrants. Early 2016, scien-

tists raised the alarm concerning the consequences of

these refugee fences for biodiversity in the journal Na-

ture, and subsequently conducted a more comprehen-

sive review of the available knowledge regarding the

implications of border fences for wildlife conservation

across Eurasia.

13

6

E. Pusterla and F. Piccin, ‘The Loss of Sovereignty Control and the

Illusion of Building Walls’, 27:2 Journal of Borderlands Studies (2012),

121.

7

‘Fence to Keep Out Hungry Wolves in Inner Mongolia’, China Daily

(26 August 2008).

8

R. Carroll, ‘Botswana Erects 300-Mile Electrif‌ied Fence to Keep

Cattle (and Zimbabweans) Out’, The Guardian (10 September 2003).

9

There is a rich literature documenting the impacts of linear infra-

structure on wildlife. For one recent review, see J. Wingard et al.,

Guidelines for Addressing the Impact of Linear Infrastructure on Large

Migratory Mammals in Central Asia (CMS, 2014).

10

T.M. Newsome et al., ‘Resolving the Value of the Dingo in

Ecological Restoration’, 23:3 Restoration Ecology (2015), 201.

11

M.J. Somers and M.W. Hayward (eds.), Fencing for Conservation:

Restrictions of Evolutionary Potential or Riposte to Threatening Pro-

cesses? (Springer, 2012); R. Woodroffe, S. Hedges and S.M. Durant,

‘To Fence or Not to Fence’, 344:6179 Science (2014), 46.

12

H.R. 418 (109th): Real ID Act of 2005, Section 102; see P. Doyle,

‘Unintended Consequences: The Environmental Impact of Border

Fencing and Immigration Reform’, 3 Arizona Journal of Environmental

Law and Policy (2014), 1047.

13

J.D.C. Linnell et al., ‘Border Controls: Refugee Fences Fragment

Wildlife’, 529:7585 Nature (2016), 156; and J.D.C. Linnell et al.,n.5

above. Both publications were co-authored by one of the present

authors, and the present article builds on them. See also A. Coghlan

and M. Tatalovic, ‘Fences Put Up to Stop Refugees in Europe are

Killing Animals’, New Scientist (17 December 2015).

ª2016 The Authors. Review of European Comparative & International Environmental Law Published by John Wiley & Sons Ltd

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ARIE TROUWBORST ET AL. RECIEL 25 (3) 2016