Mission creep in the application of wildlife law: The progressive dilution of legal requirements regarding a wild‐born orca kept for ‘research’ purposes

• DOI: http://doi.org/10.1111/reel.12270
• Published date: 01 November 2019
• Author: Ingrid Natasha Visser,Arie Trouwborst,Matthew Volk Spiegl
• Date: 01 November 2019

ORIGINAL ARTICLE

Mission creep in the application of wildlife law: The

progressive dilution of legal requirements regarding a

wild‐born orca kept for ‘research’purposes

Matthew Volk Spiegl

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Arie Trouwborst

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Ingrid Natasha Visser

Correspondence

Email: a.trouwborst@tilburguniversity.edu Environmental law contributes to biodiversity conservation insofar as it is properly

drafted and implemented. This article explores one way in which its effectiveness can

be impaired: progressive dilution. This occurs when consecutive steps are taken in the

law's application which in isolation may not appear much out of line and are presented

as legal, but eventually render a result contrary to the law's intentions –like a military

mission creeping beyond its mandate. This phenomenon is explored using the case of

an orca found emaciated in the Netherlands’waters in 2010. Captured for rehabilita-

tion purposes and subsequently retained for strictly circumscribed scientific research,

the animal somehow ended up in a commercial Spanish entertainment park, used for

public performances and breeding purposes –all with express approval of various gov-

ernmental authorities, including courts. The entire chain of events is analysed in light

of requirements imposed by diverse (inter)national legal instruments, including the

Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic,

Irish and North Seas (ASCOBANS), the Convention on International Trade in Endan-

gered Species (CITES) and European Union regulations.

1

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INTRODUCTION

To ensure the protectionand sustainable use of wildlife,law is a crucial,

albeit not sufficient,means. Legally binding instrumentsat international,

national and subnational levels can make important contributions to

biodiversity conservation –that is, when properly drafted and imple-

mented.

1

In fact, wildlife conservation legislation around the globe is

frequently the focus of subtle or not so subtle attempts to weaken its

impact, for a variety of reasons usually involving competing human

ambitions.

2

A review published in 2017 documents 39 different tactics

that have been used, by governmental stakeholders, to reduce the

effectiveness of wildlife laws, each tactic comingwith an example from

the preceding decade.

3

Some of these tactics conjure evocative names

like ‘race to the bottom’(reducing the protection offered by national

legislation to the absolute minimum requirementsof international legis-

lation) and ‘sleeping beauty’(silently neglecting the enforcement of

otherwise verygood legislation).

The present article offers a 40th tactic: the progressive dilution of

legal requirements –‘mission creep’for short. This stands for a series

of steps in the application of wildlife legislation which in isolation may

not seem very much out of the ordinary, are presented by the author-

ities involved as being in conformity with the applicable legislation,

perhaps even condoned by courts, but at the end of the line somehow

renders a result that is far removed from what the law originally envis-

aged –like a military mission gradually expanding beyond its original

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This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium,

provided the original work is properly cited.

© 2019 The Authors. Review of European, Comparative & International Environmental Law Published by John Wiley & Sons Ltd., 9600 Garsington Road, Oxford OX4

2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

1

See, e.g., G Chapron et al, ‘Bolster Legal Boundaries to Stay within Planetary Boundaries’

(2017) 1 Nature Ecology & Evolution 0086; A Trouwborst et al, ‘International Wildlife Law:

Understanding and Enhancing its Role in Conservation’(2017) 67 BioScience 784.

2

Chapron et al (n 1).

3

ibid.

DOI: 10.1111/reel.12270

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wileyonlinelibrary.com/journal/reel RECIEL. 2019;28:328–338.