Conserving European Biodiversity in a Changing Climate: The Bern Convention, the European Union Birds and Habitats Directives and the Adaptation of Nature to Climate Change

AuthorArie Trouwborst
Date01 April 2011
Published date01 April 2011
DOIhttp://doi.org/10.1111/j.1467-9388.2011.00700.x
Conserving European Biodiversity in a Changing
Climate: The Bern Convention, the European Union
Birds and Habitats Directives and the Adaptation of
Nature to Climate Change
Arie Trouwborst
This article reviews the Bern Convention on the Con-
servation of European Wildlife and Natural Habitats
and the European Union’s Wild Birds and Habitats
Directives from the perspective of the need to help
nature adapt to climate change in order to attain
biodiversity conservation goals. It concludes that even
though none of the three instruments explicitly state
this, both the Bern Convention and the EU directives
currently subject Member States to legal obligations to
take the measures necessary to facilitate the adapta-
tion of biodiversity in Europe to climate change. These
measures include the restoration and protection of
robust populations and habitats, as well as the estab-
lishment of adequate connectivity in order to enable
recovery of populations following climate-related
impacts and to enable climate-induced range shifts.
INTRODUCTION
The growing need to help species and ecosystems adapt
to climate change poses an unprecedented challenge to
international nature conservation law. A suite of proac-
tive measures appears to be required to warrant the
necessary adaptation.1These include protecting and
restoring large, robust natural areas; ensuring adequate
connectivity between such areas – thus creating pro-
tected area networks; taking management measures to
boost the resilience of species and ecosystems to chang-
ing conditions and extreme climatic events; and, in
some cases, undertaking the active translocation of
populations to more suitable areas (also known as
‘assisted migration’ or ‘assisted colonization’). All of
this, in turn, clearly augments the need for interna-
tional cooperation in nature conservation. Against this
backdrop, a mounting segment of scientific literature is
being devoted to assessing the current capacity of inter-
national nature conservation regimes to facilitate the
adaptation of species and ecosystems to climate change,
and to exploring ways of enhancing that capacity.2It
1For attempts to summarize the scientif‌ic literature on the effects of
climate change on biodiversity and on recommended adaptation
measures, see A. Trouwborst, ‘International Nature Conservation
Law and the Adaptation of Biodiversity to Climate Change: A Mis-
match?’, 21:3 Journal of Environmental Law (2009), 419, at 419–421
and 426–429.
2Besides Trouwborst, ibid., this includes M. Bowman, ‘Global
Warming and the International Legal Protection of Wildlife’, in R.R.
Churchill and D. Freestone, International Law and Global Climate
Change (Kluwer, 1991), 129; G.C. Boere and D. Taylor, ‘Global and
Regional Governmental Policy and Treaties as Tools Towards the
Mitigation of the Effect of Climate Change on Waterbirds’, 146 Ibis
(2004), 111; R. Sutherland, O. Watts and G. Williams, ‘Climate
Change and the Birds and Habitats Directives: Can They Work
Together?’, 26(3/4) Ecos (2005), 86; K. Wheeler, ‘Bird Protection and
Climate Changes: A Challenge for Natura 2000?’, 13:3 Tilburg
Foreign Law Review (2006), 283; H.E. Woldendorp, ‘Integratiedebat
in het Natuurbeschermingsbeleid’, 45/46 Nederlands Juristenblad
(2007), 2881; D. Hodas, ‘Biodiversity and Climate Change Laws: A
Failure to Communicate?’, in M.I. Jeffery et al. (eds), Biodiversity,
Conservation, Law and Livelihoods: Bridging the North–South Divide
(Cambridge University Press, 2008), 383; A. Cliquet, C. Backes, J.
Harris and P. Howsam, ‘Adaptation to Climate Change: Legal Chal-
lenges for Protected Areas’, 5:1 Utrecht Law Review (2009), 158;
W.C.G. Burns, ‘Belt and Suspenders? The World Heritage Conven-
tion’s Role in Confronting Climate Change’, 18:2 Review of European
Community and International Environmental Law (2009), 148; T.
Marauhn, ‘The Potential of the Convention on Biological Diversity to
Address the Effects of Climate Change in the Arctic’, in T. Koivurova
et al. (eds), Climate Governance in the Arctic (Springer, 2009); S.
Erens, J. Verschuuren and K. Bastmeijer, ‘Adaptation to Climate
Change to Save Biodiversity: Lessons Learned from African and
European Experiences’, in B.J. Richardson et al. (eds), Climate Law
and Developing Countries: Legal and Policy Challenges for the World
Economy (Edward Elgar, 2009), 206; C.J. Bastmeijer and K. Willems,
‘Robuust, Verbonden en...Beschermd.PasteenKlimaatbestendig
Natuurbeleid met Aandacht voor “Wilde Natuur”-beleving in het Juri-
dische Natura 2000-Jasje?’, in C.W. Backes et al., Natuur(lijk) met
Recht Beschermd: Bouwstenen voor een Effectieve en Hanteerbare
Natuurbescherming (Boom Juridische Uitgevers, 2010), 85; A. Dodd,
A. Hardiman, K. Jennings and G. Williams, ‘Commentary: Protected
Areas and Climate Change: Ref‌lections from a Practitioner’s Per-
spective’, 6:1 Utrecht Law Review (2010), 141; A. Cliquet, J. Harris,
P. Howsam and C. Backes, ‘Response to “Protected Areas and
Climate Change: Ref‌lections from a Practitioner’s Perspective”’, 6:1
Utrecht Law Review (2010), 149; D. Schramm and A. Fishman, ‘Legal
Frameworks for Adaptive Natural Resource Management in a Chang-
ing Climate’, 22 Georgetown International Environmental Law Review
(2010), 491; J. Verschuuren, ‘Rethinking Restoration in the European
Union’s Birds and Habitats Directives’, 28:4 Ecological Restoration
(2010), 431; A. Kühl and E. Maruma Mrema, ‘Impacts of Climate
Review of European Community & International Environmental Law
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should be noted that, naturally, comparable issues arise
and are discussed within national contexts.3
States are well aware of the necessity of, as the G8
Environment Ministers put it in 2009, ‘[p]roactively
putting in place actions for climate change adaptation of
natural and managed ecosystems’, as ‘spontaneous
adaptation is not expected to be sufficient’.4The Confer-
ence of the Parties (COP) to the Biodiversity Convention
(CBD),5which means virtually all States (except the
United States), have similarly recognized the need to
‘enhance the integration of climate-change consider-
ations related to biodiversity in their implementation of
the Convention’, inter alia by incorporating such con-
siderations in national biodiversity strategies and by
taking ‘appropriate actions to address’ the impacts of
climate change on biodiversity.6Furthermore, the CBD
COP has resolved to ‘take measures to manage ecosys-
tems so as to maintain their resilience to extreme climate
events and to help mitigate and adapt to climate change’7
and to ‘integrate climate change adaptation measures in
protected area planning, management strategies, and in
the design of protected area systems’.8As part of more
comprehensive guidance, the decision on biodiversity
and climate change adopted at the latest COP in Nagoya
in October 2010, invites parties – subject to the qualifi-
cation ‘according to national circumstances and priori-
ties’ – to take the following actions:
Reduce the negative impacts from climate change as far
as ecologically feasible, through conservation and sustain-
able management strategies that maintain and restore
biodiversity;
Implement activities to increase the adaptive capacity of
species and the resilience of ecosystems in the face of
climate change, including, inter alia:
(i) Reducing non-climate stresses, such as pollution, over-
exploitation, habitat loss and fragmentation and invasive
alien species;
(ii) Reducing climate related stresses, where possible, such
as through enhanced adaptive and integrated water resource
and marine and coastal management;
(iii) Strengthening protected area networks including
through the use of connectivity measures such as the devel-
opment of ecological networks and ecological corridors and
the restoration of degraded habitats and landscapes ...;
(iv) Integrating biodiversity into wider seascape and land-
scape management;
(v) Restoring degraded ecosystems and ecosystem func-
tions; and
(vi) Facilitating adaptive management by strengthening
monitoring and evaluation systems;
Bearing in mind that under climate change, natural adapta-
tion will be difficult and recognizing that in situ conserva-
tion actions are more effective, also consider ex situ
measures, such as relocation, assisted migration and captive
breeding, among others, that could contribute to maintain-
ing the adaptive capacity and securing the survival of species
at risk, taking into account the precautionary approach in
order to avoid unintended ecological consequences.9
Also in the 2010 CBD COP Decision on protected areas,
climate change was identified as one of the ‘issues that
need greater attention’.10 Parties are requested in this
regard to ‘integrate protected areas into wider land-
scapes and seascapes and sectors’, including through
‘connectivity measures such as the development of eco-
logical networks and ecological corridors, and the res-
toration of degraded habitats and landscapes in order
to address climate change impacts and increase resil-
ience to climate change’.11 Decisions recommending
climate adaptation measures have also been adopted
under other global nature conservation treaties, includ-
ing the Ramsar Wetlands Convention12 and the Bonn
Change on Biodiversity, with a Focus on Migratory Species’, in T.
Honkonen and E. Couzens (eds), International Environmental Law-
making and Diplomacy Review (University of Eastern Finland, forth-
coming 2011). See also the following presentations at the 8th IUCN
Academy of Environmental Law Colloquium, which focused on ‘Link-
ages Between Biodiversity and Climate Change’ (Ghent, 14–17 Sep-
tember 2010): A. Cliquet, ‘Connectivity Between Protected Areas as
an Adaptation Strategy for Biodiversity Conservation’; A. Trouwborst,
‘Climate Change Adaptation and the Bonn Convention on Migratory
Species and its Daughter Agreements’; H. Unnerstall, ‘Natura 2000
and Climate Change: Options and Imperatives for Adapting the Inter-
pretation of the Habitats Directive’; R. Uylenburg, ‘Climate Change
and the (In)f‌lexibility of Natura 2000’, all of which can be found at
http://www.iucnael.org/index.php?option=com_content&view=
article&id=141%3Aghent-colloquium-2010-full-program-and-
presentations&catid=98&Itemid=91&lang=en>.
3See, e.g., J.E. Hossell, N.E. Ellis, M.J. Harley and I.R. Hepburn,
‘Climate Change and Nature Conservation: Implications for Policy
and Practice in Britain and Ireland’, 11:1 Journal for Nature Conser-
vation (2003), 67; (for the Netherlands) B. van Leeuwen and P.
Opdam, ‘Klimaatsverandering Vergt Aanpassing van het Natuur-
beleid’, 104:3 De Levende Natuur (2003), 122; (for Australia) H.
Clarke, ‘Conserving Biodiversity in the Face of Climate Change’, 14:2
Agenda (2007), 157; B. Griff‌ith et al., ‘Climate Change Adaptation for
the US National Wildlife Refuge System’ 44:6 Environmental Man-
agement (2009), 1043.
4‘Carta di Siracusa’ on Biodiversity (Siracusa, 24 April 2009), para. 2.
5Convention on Biological Diversity (Rio de Janeiro, 5 June 1992).
6COP Decision IX/16 on Biodiversity and Climate Change (30 May
2008), paras A(4)(b) and (i).
7COP Decision VII/15 on Biodiversity and Climate Change (20 Feb-
ruary 2004), para. 12.
8COP Decision VII/28 on Protected Areas (20 February 2004), para.
1(4)(5).
9COP Decision X/33 on Biodiversity and Climate Change (29
October 2010), paras 8(c)–(e).
10 See COP Decision X/31 on Protected Areas (29 October 2010),
section B(2), para. 14.
11 Ibid.
12 Convention on Wetlands of International Importance Especially
as Waterfowl Habitat (Ramsar, 2 February 1971). See, e.g., COP
Resolution VIII.3 on Climate Change and Wetlands (26 November
2002); and COP Resolution X.24 on Climate Change and Wetlands
(4 November 2008).
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