1. Introduction
July, 2002: The Government of Guyana concludes a 30-year Conservation Concession Agreement with US-based Conservation International. Pursuant to the agreement, the conservation organization leases 200,000 acres of primary rainforest in the Upper Essequibo watershed, paying annual fees comparable to what a logging company would pay if the area was leased for forestry purposes.
January, 2009: Waigeo Island, Raja Ampats, Indonesia: Ecotourism company Papua Expeditions, with funding from a Chicago-based donor, concludes a Community Conservation and Ecotourism Agreement with the customary landholding groups. The agreement specifies the company's contractual financial obligations and the carefully defined conservation outcomes to be provided by the community.
August, 2010, Ecuador and the United Nations Development Program (UNDP) sign an agreement to establish a trust fund, which aims at financially compensating the South American country for refraining from oil drilling in its Yasuní National Park.
Transnational environmental law is being made by contract. Yet, the significance of these agreements as an aspect of transnational legal governance is easy to miss, as individual contracts are constructed as isolated, unrelated, one-off phenomena. The highly varied form and substance of these agreements further obscure the phenomenon of contracting as a collective practice or transnational instrument choice. The above narratives describe three anecdotal accounts of unrelated and distinct agreements to protect biodiversity. The object of this article is to argue that these disparate agreements are revealing of a more widespread, if little-noticed, turn to contracts as a mechanism of transnational environmental law. This article provides an introduction to one manifestation of this practice – transnational conservation contracts.
Transnational conservation contracts can be defined as agreements to conserve discrete areas of land or water, including valued, endangered, or critical habitat, between actors in more than one country. These agreements are transnational, rather than international, in the sense that they involve parties in different jurisdictions, but they are not constituted through the co-operation of states. While the legal status of these agreements differs dramatically, it is useful to situate these agreements within the growing field of transnational law, and more particularly as an example of transnational environmental law. Transnational conservation contracts thus take legal scholars beyond ‘current conceptual comfort zones’ of contemplating law as either domestic (state) or international (inter-state).Footnote 1 They reveal a density of interactions between international organizations, sub-state governments, multinational corporations, non-governmental organizations (NGOs), indigenous peoples, Foundations, community groups, and individual landowners that transcend state borders. They evidence what scholars of global environmental politics have described as the ‘rescaling of environmental politics’Footnote 2 both beyond and within the state.
The choice of describing transnational conservation agreements as ‘contracts’ is a deliberate one. These agreements vary significantly. Some are legally binding; others are not. Many examples might more appropriately be described as pledges, or restrictive covenants, or commitments, or some more amorphously as ‘voluntary agreements’ or ‘hybrid agreements’. But speaking the language of contracting encourages a legal analysis of these agreements, which might otherwise not take place. As Karl Llewellyn explained in 1930, ‘contract comes to a lawyer as a term laden with connotations of doctrine and theory’.Footnote 3 One of the consequences of the fact that conservation contracts largely escape the scrutiny of lawyers is that their legality is rarely investigated. Talking about these agreements as ‘contracts’ invites a closer look at the text of these agreements and their legality.
To date, transnational conservation contracts have been framed and debated as a market tool.Footnote 4 They are emerging, in particular, as a favoured tool of certain United States-based conservation organizations who argue that global threats to biodiversity are sufficiently urgent to merit direct action such as ‘renting’ forests in foreign countries or trading debt for protected areas. The glacial pace of international treaty negotiations creates an appetite for quicker ‘fixes’ to transnational problems such as threatened-species extinctions or critical-habitat destruction. Conservation contracts emerge as one such fix. But discussion of these agreements has been largely limited to the conservation biology literature and to the policy literature generated by conservation groups that examines conservation agreements as a mechanism for providing direct payments for environmental services (PES). Current debates thus largely focus on a single question: do they work?
Framing conservation contracts within the context of transnational environmental law refocuses attention on a new set of questions. An initial exercise in lumping together diverse agreements is thus a precursor to the valuable analysis that follows. Creating a taxonomy of conservation contracts will allow for detailed inquiries into the legality of these agreements, and distinctions of form and substance, that may ultimately lead to drafting better agreements.Footnote 5
Thinking about transnational conservation contracts as transnational environmental law refreshes the current debates beyond polarized visions of their effectiveness. It allows us to take the law more seriously in this context. It invites a closer scrutiny of legal content and function. Are these intended to be legal arrangements? Are they embedded within Anglo-American neo-liberal assumptions of party autonomy and freedom of contract? What choice of law is made? What are the mechanisms for dispute resolution? Are international biodiversity norms or standards directly or indirectly referenced? Is there an attempt to integrate other international legal norms? How do these agreements straddle the line between contract and property law? Do transnational conservation contracts trade away valuable property rights that communities and indigenous groups have only recently secured? Is learning taking place between contracts? How well are prototype contracts tailored to diverse cultural contexts? Transnational conservation contracts are not new. But what explains the seeming proliferation of contractual approaches?
This article is not the place to answer all of these questions. It is the place to introduce conservation contracts and to situate them within a wider discussion of the complex fairness challenges emerging in transnational environmental law.Footnote 6 The article begins by situating transnational contracting within a wider discussion of transnational environmental law. The fact that many international environmental norms are now advanced through mechanisms outside treaty instruments gives rise to anxieties about the legitimacy, accountability, and fairness of the complex emerging architecture of transnational environmental law.Footnote 7 Transnational environmental law is a helpful lens through which to assess conservation contracts, as it takes seriously the challenge of understanding non-state law-making. It allows for thinking about these agreements as law – a new direction for research on conservation contracts.
Against this backdrop of transnational environmental law, I introduce transnational conservation contracts as a collective phenomenon. Section 2 of this article describes these agreements and discusses five types of contract: conservation concession agreements, conservation performance payments, forest carbon agreements, private protected area agreements, and debt-for-nature swaps. This is not an exhaustive survey of conservation contracts. It provides a positive rather than normative addition to literature on transnational environmental law.
The third and final section of the article seeks to deepen our understanding of conservation contracts by situating these agreements within legal debates on fairness. Drawing on insights from fairness theory in both contract law and international environmental law, I sketch an agenda for thinking about fairness in the context of transnational environmental law. By building on fairness theory in both private law and public international law, we are able to advance the study of transnational conservation contracts in a way that takes seriously the need for a close textual reading of contracts, but at the same time reveals the wider cultural and discursive shifts in play in turning to contracts to protect global biodiversity.
2. Transnational environmental law
Transnational environmental law is described in a new journal devoted to its analysis as ‘the study of environmental law and governance beyond the state. It approaches legal and regulatory developments with an interest in the contribution of non-state actors and an awareness of the multi-level governance context in which contemporary environmental law unfolds’.Footnote 8
The study of transnational environmental law provides an opportune moment to assess areas of law that have developed and become important in practice, but that are obscured by a focus on either international law or domestic law. These issues are illuminated when one attempts to conceptualize and categorize transnational conservation agreements. Conservation agreements ill fit the conceptual dichotomies that traditionally animate international environmental law. This likely explains their invisibility in traditional accounts of international environmental law-making. They can be seen as both top-down and bottom-up approaches. They are public and private; state and non-state; formal and informal; hard and soft; local and international; law and non-law.
Transnational conservation contracts provide a useful opportunity to reflect on the relationship between transnational environmental law and international environmental law. This is a relationship that is far from linear. Transnational environmental law is generally conceived as something broader than international environmental law. Gregory Shaffer and Daniel Bodansky expansively conceptualize it as encompassing ‘all environmental law norms that apply to transboundary activities or that have effects in more than one jurisdiction’.Footnote 9 But, as the example of transnational conservation contracts reveals, international environmental law and transnational environmental law can be closely enmeshed and are marked by a density of interactions.Footnote 10
Transnational conservation contracts may attempt to implement norms articulated in environmental treaties. In some cases, these contracts shadow treaty obligations. Climate-change offset agreements reference the Kyoto Protocol; access and benefit-sharing agreements discuss obligations under the Convention on Biological Diversity. Conservation contracts also make explicit reference to other sources of international environmental standards, such as the Equator Principles, or the International Finance Corporation's Performance Standards. An increased role for contract-based measures to promote tropical forest conservation will emerge through the Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (REDD+) initiatives pursuant to the UN Framework Convention on Climate Change. These interactions between treaties and contracts risk being missed if contracts are not situated within the framework of transnational environmental law.
The diversity of conservation contracts, and of contracting parties, makes it difficult to generalize about issues of legality. Transnational law helps us in the task of thinking about these agreements as law and in interpreting their wider significance. Transnational-law theorists are making important inroads into defining and defending the terrain of transnational non-state agreements as law.Footnote 11 Gralf-Peter Calliess and Peer Zumbansen suggest that the transnational challenge to legal theory comes at a moment when the fields of both public international law and private international law are already being forced to adapt to ‘increasingly decentralized and relativized law-making forums’.Footnote 12 Robert Wai argues for closer attention to transnational private law:
An appreciation of private law as concerned with the relationship among plural and transnational normative orders is obscured because subjects of private law and private international law are typically considered separately. When viewed together, a sense of the long-established task for private law of relating normative orders that challenge state boundaries becomes clearer.Footnote 13
While Robert Wai focuses on examples of international business transactions, and Gralf-Peter Calliess and Peer Zumbansen invoke studies of corporate and consumer transactions, their work can be usefully extended to the transactions for conservation services that are the subject of this article. Transnational conservation contracts rarely exhibit a full rejection of state-based law. But they are situated in a complex world in which regulatory processes are not limited to state actors. These agreements open up space for thinking about ‘law-making’ in ways that challenge traditional assumptions and conceptions.
Conservation contracts reveal forms of law-making by non-state (or private) actors that are central to the study of transnational environmental law. Conservation concessions, payments for ecological services, and debt-for-nature swaps all signal a growing use of direct action by NGOs, distinct from campaigning roles.Footnote 14 But greater untangling of the private actors involved is necessary. Private actors who are architects of these agreements, or parties to them, range from global NGOs to local community groups to corporations to foundations. In some cases, focus on the actors involved in these agreements obscures other important aspects of the agreements themselves. Drawing attention to the legal nature of these agreements invites a careful textual analysis that is rarely present in discussions of the politics of agreement-making. Further, focusing on agreements as legal texts draws attention to the fact that these contracts are not simply isolated agreements, but rather part of the wider architecture of transnational law.
3. Transnational conservation contracts
Are there sufficient patterns of commonality between conservation contracts to justify the study of something called ‘transnational conservation contracts’? Is there any value in aggregating these diverse agreements? The limited literature on transnational conservation contracts addresses each type of contract as an isolated phenomenon. Forest carbon agreements are thus the subject of a literature distinct from that which analyses debt-for-nature swaps or concession agreements. This may be due to the fact that the literature exploring these agreements has largely developed in journals devoted to conservation biology. Viewing conservation contracts collectively as a non-comprehensive category of environmental agreement makes sense for at least three reasons: (i) contracts often involve repeat actors and architects (e.g., certain contractual approaches are favoured by specific conservation organizations such as Conservation International or The Nature Conservancy); (ii) there is a textual similarity between agreements due to the repeated use of prototypes and precedents; and (iii) a collective view of contracts reveals the integration of international legal norms within these agreements. This integration risks being missed if individual contracts are only viewed in isolation.
In this section, I draw attention to the phenomenon of transnational conservation contracts as a collective practice. I define transnational conservation contracts and describe the practice of contracting by introducing five categories of contractual approach: (i) conservation concession agreements; (ii) conservation performance payments; (iii) forest carbon agreements; (iv) private protected area and company reserve agreements; and (v) debt-for-nature swaps. This list is not intended to be comprehensive; rather, it introduces the diversity of agreements that may be conceptualized as transnational conservation contracts. While I loosely describe these agreements as contracts, their legal significance extends beyond concepts of contract law to implicate notions of property ownership and, as I will argue, transnational environmental law.
Transnational conservation contracts are agreements that address the protection of discrete areas of land or water to achieve conservation objectives including the protection of valued, endangered, or critical habitat and involve actors in more than one country. Referring to contracts as conservation contracts is a reflection of the fact that many of the initiatives described in this article primarily seek to preserve or conserve biodiversity (rather than, for example, implementing regimes for sustainable use). Conservation is a ‘social and political process by which natural resources . . . are managed to maintain biodiversity’.Footnote 15 The history of conservation reflects the tensions that have emerged around this social and political process:
Activities that qualify as Conservation have, over the past 150 years, been implemented by, and often in the favour of, political and national elites. Over the past 50 years, however, as biodiversity loss has been constructed as an international problem, Conservation has also increasingly become the purview of international non‐governmental organizations (NGOs), many of which have come to hold greater environmental authority than the governments of nation states. Often structured through class and racial bias, and ignorant of community‐based practices for environmental management, contemporary conservation policy, practice and jurisdiction has emerged out of a past littered with struggles over sovereignty, competing ideologies of nature, conflicting use rights, and markedly inequitable power relations.Footnote 16
The description of five categories of transnational conservation contract that follows reveals that conservation agreements are not a purely North–South phenomenon, but the North–South dimensions of this transnational phenomenon require further elucidation.
3.1. Conservation concession agreements
Conservation concessions centre on lease agreements; national authorities or local resource users lease public lands or resources to conservation groups who commit to use the lands for conservation purposes.Footnote 17 The simplest forms of conservation concession are modelled after extractive-industry concession agreements, such as timber or mining concessions. Rather than mining or logging the concession area, the conservation investor pays the government for the right not to develop the land. The conservation group commits to protecting the lands for conservation purposes. Payments are calculated in a way that intends to compensate the landowner for forgoing extractive use of the land. The contract also typically includes norms and guidelines for monitoring and enforcing the protection of the site.
Global conservation organizations active in negotiating conservation concessions, such as Conservation International, tend to be repeat actors, negotiating agreements in multiple jurisdictions.Footnote 18 In certain jurisdictions, concession agreements can only be concluded following domestic legal reforms, permitting the conclusion of such agreements. For example, in 2002, the Peruvian government included a new provision in its Forestry Law that allows conservation concessions to be adopted as a legal form of land use. The adoption of this law followed discussions between the Peruvian government and US conservation groups, who helped draft the legislation.Footnote 19 International conservation groups have since signed concession agreements with the Peruvian government, including a 40-year concession agreement in 2006 between the Wildlife Conservation Society and the government of Peru to protect habitat for the endangered red uakari monkey.Footnote 20 The transplant of laws to facilitate the introduction of conservation concessions highlights the wider implications of contractual environmental governance – the shifts in contract and property law that occur to accommodate conservation contracts.
3.2. Conservation performance payments agreements
Conservation performance payments involve a similar approach to concession agreements but they do not centre on lease arrangements. Rather, performance payments involve the purchase of a well-defined environmental service (or land use likely to secure that service) with payments that are conditional on the performance of a biodiversity-related outcome such as habitat protection or species preservation.Footnote 21 These payments are often made by foreign donors or conservation organizations to local communities or governments in low-income countries to secure the conservation of endangered ecosystems. The motivating idea is to steer economic development away from the most environmentally destructive forms (such as mining or oil and gas development) and to encourage individuals and communities to invest in activities that do not lead to habitat or biodiversity loss (such as ecotourism).
Conservation performance payments are used in both domestic and transnational contexts. In Sweden, for example, a performance-payment scheme was introduced to alleviate conflicts between carnivores and livestock. The programme, which issued payments for carnivore offspring, was designed to stabilize populations of wolves, lynxes, and wolverines.Footnote 22 The payments are designed to offset the future damage the carnivores are anticipated to cause. International habitat reserve programs (IHRP) are an example of a transnational manifestation of this practice. Contracts pursuant to an IHRP require the outside agent (often an international conservation organization) to make periodic performance payments in exchange for local actors’ ensuring that target ecosystems remain protected. Compliance monitoring ensures that target levels of species continue to be found in the ecosystem and payments are dependent on these targets being reached.Footnote 23 While individual contracts may contain specific provisions on monitoring and enforcement measures in the event of non-compliance, the degree to which these contracts are enforced in practice is unknown.
3.3. Forest carbon agreements
Forest carbon agreements are a type of performance-payment agreement. They reflect an approach of using markets to address the critical role of forests in helping to mitigate the growing threat from anthropogenic climate change. Forest carbon offset agreements are largely transacted between greenhouse-gas emitters in industrialized countries and sellers in developing countries. Forest carbon agreements are a growth area for transnational environmental law. But these agreements pose challenges for lawyers. Forest carbon is a new form of property. Voluntary markets have yet to conclude clear rules of property rights for forest carbon. States are still developing legal regimes to allocate property rights in forest carbon.Footnote 24 Further, the nature of existing forest carbon markets is such that carbon buyers and sellers are unlikely to be on unequal footing in terms of their commercial experience and legal representation.Footnote 25 Some United States-based NGOs have sought to ‘level the playing field’ between buyers and sellers by drafting prototype agreements for forest carbon-emission reductions purchases, modelled on US contract law.Footnote 26 These agreements seek to redress the one-sided legal drafting carried out by carbon purchasers.
Forest carbon agreements highlight legal issues relevant to many of the other contracts discussed in this article. In many cases, contracting takes place against a backdrop of unclear land tenure, including uncertainties arising from disputes between indigenous peoples and state governments. A legal context that emphasizes freedom of contract may be foreign to landowners signing these agreements. Critiques of forest carbon agreements further charge that these agreements allow ‘the wealthy to sequester further wealth far out of proportion to the carbon sequestered’,Footnote 27 that they are based on inadequate scientific knowledge of tropical forests,Footnote 28 that they are subject to leakage (that is to say that preserving forests in one location will lead to logging elsewhere), and that they are inadequately geared to protect biodiversity.Footnote 29
A significantly increased role for forest carbon agreements is contemplated under REDD+, a proposed performance-based mechanism under negotiation through the United Nations Framework Convention on Climate Change and as markets for carbon become legally entrenched. These developments are leading to inter-state agreements on forest conservation. For example, in 2009, Norway and Guyana signed a Memorandum of Understanding pertaining to forest protection.Footnote 30 This agreement provides for payments by Norway of up to US$250 million during a five-year period ending in 2015 in return for Guyana's commitment to limit forest-based greenhouse-gas emissions and to protect its rainforest as an asset for the world. A careful reading of this Memorandum of Understanding reveals the extent to which the agreement is embedded within other forms of transnational law. Guyana is required under the agreement to show evidence of entering a formal dialogue with the European Union with the intent of joining its Forest Law Enforcement, Governance and Trade processes towards a Voluntary Partnership Agreement. Guyana also has to show evidence of its decision to enter a formal dialogue with the Extractive Industries Transparency Initiative (EITI) or an alternative mechanism that the two countries agree will advance similar aims to the EITI. These requirements, emerging out of a Memorandum of Understanding, again suggest the powerful transformative impact of contractual negotiations on domestic and transnational legal systems.
3.4. Private protected area and company reserve agreements
Company-protected areas and privately managed reserves involve private forms of land ownership or management and may be the result of transnational conservation contracts. These agreements involve diverse non-state actors. In some cases, contractual provisions will require extractive-industry companies to put aside certain project areas for conservation purposes as part of permitting and project approval negotiations. In other cases, international foundations or conservation NGOs will purchase or donate funds to local NGOs to purchase critical habitats. The extent of privately conserved land is unknown, as these reserves and protected areas do not fall within international mapping initiatives such as the World Database of Protected Areas.Footnote 31 The existence of privately protected areas is confirmed by the annual reports of both private companies and conservation organizations that document their ownership and use of private lands for conservation purposes.
Countries have developed diverse legal mechanisms for recognizing private protected areas or reserves. Purchase agreements and conservation easements are examples of these legal mechanisms. In Latin America, for example, many countries have legally recognized the private reserve as a device to protect private lands and a number of conservation organizations are experimenting with the use of easements to provide for private land protection.Footnote 32
The creation and funding of private protected areas has long been a strategy of internationally minded conservation organizations intent on long-term protection of lands of conservation importance.Footnote 33 For example, in Costa Rica, land purchases became a critical aspect of ‘save the rainforest’ campaigns and led to the creation of globally recognized protected areas such as the Monteverde Rainforest.Footnote 34
While companies are also participants in private land conservation, the extent of ‘company reserves’ remains unknown. Corporate contributions to land conservation take diverse forms including the sale of land for conservation purposes, ownership and management of land for biodiversity conservation, and the management of land for conservation purposes in cases in which the company is not the direct owner.Footnote 35 One example of a company owning and managing land for conservation purposes is the Bushmanland Conservation Initiative in Namibia, where an agreement provides for private land protection by mining company Anglo Base Metals.Footnote 36
Private and company reserves are particularly significant for forest management and protection. Although much forest land remains owned by governments, it is often leased to international forest companies under long-term leases. Accordingly, conservation management may fall to these companies during their leasehold periods. For example, in January 2006, the Senepis-Buluhala Tiger Conservation Area in Indonesia was approved by the Indonesian minister of forestry. The peat swamp forest conservation area is habitat for the Sumatran tiger, but forest companies are granted concessions to manage the land. These companies will maintain ownership of the land under their concession licences but, according to a ministerial letter agreement, the companies are responsible for supporting the mission and activities of the Senepis conservation area in the future.Footnote 37
Distinct from funding and establishing private conservation areas is the practice of international conservation organizations contracting with national governments to establish national forests. Conservation International, for example, signed a ‘bio-diversity agreement’ with the government of Equatorial Guinea to establish a National Forest. Under the agreement, the government commits to establishing a National Forest and a National Conservation Trust Fund to permanently support the country's biodiversity conservation.Footnote 38
3.5. Debt-for-nature swaps
Debt-for-nature swaps are agreements through which foreign debt is purchased, donated, or released in exchange for conservation efforts to be undertaken by or on behalf of a debtor country. The emergence of these swaps is commonly traced back to the 1980s debt crisis and a proposal by Conservation International's Thomas Lovejoy.Footnote 39 In return for commitments to set aside land as nature reserves or to adopt sustainable management practices, debtor governments receive debt relief.
Debt-for-nature swaps divide into two broad categories: public (or bilateral debt-reduction programmes) and private (or commercial swaps). Commercial swaps are largely financed by private conservation organizations. Typically, swaps involve three or more parties: an international conservation organization that donates the funds, a conservation organization in the host country, and one or more government agencies in the host state.Footnote 40 Public swaps, on the other hand, are those concluded between debtor and creditor governments for the exchange of official debt.Footnote 41
The first private debt-for-nature swap was concluded between the government of Bolivia and Conservation International in 1987. The funds were provided to Conservation International from a private US foundation.Footnote 42 In the same year, the World Wildlife Fund (WWF) negotiated a swap with the government of Ecuador and another swap was concluded in Costa Rica with the facilitation of the Nature Conservancy, WWF, Conservation International, and several other foundations.Footnote 43 The late 1980s and early 1990s were also characterized by debt-for-nature swaps between these same three conservation organizations and a number of other countries, mostly in Latin America.
While it is unclear whether these swaps have made a significant impact on the issues of deforestation and biodiversity loss, they have been significant in revealing the extent to which private conservation organizations can foster institutional innovations.Footnote 44 Debt-for-nature swaps have also become bundled within wider social benefit programmes that aim to provide education, sanitation, famine relief, and health care services in return for the adoption of nature conservation measures.Footnote 45
Especially in the case of private swaps, enforcement of agreement terms has often proved to be difficult.Footnote 46 In practice, because of concerns regarding sovereignty of contracting states, most private contracts rarely contain clauses on remedies for default such as arbitration, choice of forum, choice of law, or waiver of sovereign immunity.Footnote 47
The above overview of five categories of transnational conservation contract is a preliminary effort to highlight the diversity of some of the types of conservation contract that are currently being negotiated. This overview also reveals some of the limits of current knowledge of contractual arrangements. Little is known about how many of these agreements are created and replicated. Even less is known about efforts to enforce these agreements, whether through judicial or non-judicial means. The difficulty of accessing the private texts of contractual agreements poses a significant (but not insurmountable) impediment to a full investigation of these contractual arrangements, and the wider fairness issues they invoke.
4. Fairness and transnational conservation contracts: why labels matter
Fairness is a placeholder for a number of distinct concerns. In the context of transnational conservation contracts, these concerns collide with those often characterized as concerns about accountability, legitimacy, and transparency.Footnote 48 Different fields of law, however, frame fairness debates in distinct ways.
In this section, I draw on insights from fairness theories in both contract law and international environmental law to explore some of the particular fairness challenges posed by transnational conservation contracts. I am far from the first to suggest that contract law and international law are worthy of deeper cross-fertilization.Footnote 49 This cross-fertilization between public and private law, domestic and international law, is central to the task of articulating and conceptualizing transnational environmental law.
5. Insights from contract law
Transnational conservation agreements are not commonly framed as contracts. Yet, thinking about these agreements as contracts is helpful, as it forces a textual analysis – something that is rarely done – and because it invites an acknowledgement of the complex social and legal contexts of these agreements. More specifically, a legal or textual analysis of conservation agreements highlights important contractual issues such as privity of contracts, the nature of the parties and their expectations of creating binding legal relationships, the adequacy of consideration, terms of the contract, dispute resolution provisions, and issues of applicable law.
Thinking about conservation agreements as contracts forces an engagement with the private-law aspects of these agreements. A contract-law analysis invites careful analysis of unequal bargaining power. The principle of privity of contract means that non-parties do not have rights to enforce or alter these contracts. Are there any important third parties left out of the agreement who will, however, experience third-party effects? The lack of any repository of private contractual agreements of this nature means that the extent of contracting practices and the terms of conservation contracts remain unknown. This gives rise to key concerns about the transparency of these agreements and their negotiations.
Fairness in contract often refers to fairness between the specific parties rather than to the wider issue of promoting a more equitable distribution of power and wealth in society. This, in part, explains the tendency of courts to obliquely identify sites of procedural irregularity rather than directly addressing the unfairness of the contractual bargain.Footnote 50 The fact that courts are the major arbiters of fairness presents a further challenge to ensuring fairness in transnational conservation contracts, as there is no evidence that the courts are or will be used to enforce aspects of these transnational agreements.
Contract-law scholars are quick to acknowledge that contracts are embedded in the ‘social practices and norms in which they arise’.Footnote 51 This presents particular challenges for understanding transnational conservation contracts as the product of a set of particular market and social realities. What does it mean, in a transnational context, to understand contracts ‘as complex, societal arrangements that visibilize and negotiate conflicting rationalities and interests’?Footnote 52
A significant challenge posed by transnational conservation contracts is to understand the extent to which these purportedly transnational agreements remain embedded in Anglo-American neo-liberal frameworks of freedom of contract, party autonomy, and liberal individualism. These principles operate as guiding assumptions underlying classical contract law,Footnote 53 yet they may not ‘travel well’ across different cultural contexts.Footnote 54 Importantly, the reverence afforded to written contracts by US contract law may not be justified in a cross-cultural context.Footnote 55 Moreover, in certain countries, the contractual form may be considered ‘unnecessary, sometimes offensive, when rules of loyalty and mutual obligation structure the business environment’.Footnote 56 Guiding rules that are appropriate for individuals as contracting parties may not transfer well to situations in which governments or communities are contracting parties.Footnote 57 We know that a small number of United States-based conservation groups are the repeat authors of many conservation concession agreements as well as other transnational conservation agreements. We do not know the extent to which these agreements remain intractably rooted in American contract-law traditions.
There are also dangers implicit in framing conservation agreements as contracts. One such danger is that invoking private law risks depoliticizing these agreements. Framing conservation contracts as a private-law tool may forestall an inquiry into the degree to which these agreements advance the wider public interest. A view of private law as ‘the repository of our most persistent illusions about the autonomy of law from politics’ is difficult to fully escape.Footnote 58 Legal realists have long been fighting a war to re-politicize contract law and to highlight the political stakes at issue, including in ‘merely technical’ questions of contract interpretation.Footnote 59 Thinking about contracts as legal texts must not deflect from the larger questions that these agreements raise. Why are companies and conservation groups the key actors in defining which global habitats receive protection? What factors explain the unequal geographic distribution of these agreements? What mechanisms for accountability are included in these agreements? Is the anti-democratic nature of these often top-down, imposed agreements justified by the urgency of the need for protecting endangered species and threatened habitats? These questions also come to the fore by situating conservation contracts within the wider debates shaping international environmental law.
6. Insights from international environmental law
Fairness theories in international environmental law are a product of the wider fairness debates being waged in international law. It is thus not surprising that fairness theory in international environmental law has developed within a state-centric paradigm. In the context of international climate-change law, fairness is often framed as an issue of ‘how countries of the world shall allocate the burden of addressing global climate change’.Footnote 60 The principle of common but differentiated responsibilities focuses on how states are incongruently situated.Footnote 61 Eli Louka, Thomas Franck, and scholars writing within the Third World Approaches to International Law (TWAIL) tradition have, in articulating theories of fairness, directed their theorizing to public international environmental law, largely leaving aside private environmental governance.Footnote 62 Yet, important insights from their work can deepen our understanding of transnational conservation contracts. Thomas Franck's detailed scholarship on fairness expounds a theory in which nations comply with international rules because of the fairness of the rules themselves. This fairness speaks to considerations of both fair process (legitimacy) and distributive justice.Footnote 63
TWAIL theorist Bhupinder Chimni argues that a global imperial state is being developed by a ‘transnational corporate class’ and this state is replacing not the structures of government, but the functions.Footnote 64 Chimni's concern about the usurpation of government function by non-state actors resonates with the practice of environmental contracting and the key roles of non-state actors as the contracting parties to conservation contracts. There is a definite tension between conservation contracts, which are often debated behind closed doors and announced through a news conference, and emerging best practices of inclusive, transparent, and participatory international environmental decision-making.Footnote 65 To justify the democratic deficits associated with conservation deal-making, the urgency of protecting endangered species and places is frequently evoked.
Theories of consent are foundational in both international law and contract law. Who is giving consent in transnational conservation contract settings? Are women negotiating these agreements? Ciaran O'Faircheallaigh, who has been present during the negotiations of many agreements between indigenous communities and mining companies, points to the challenges in knowing whether women are excluded from these negotiations or whether their interests are neglected:
These are not easy questions to answer. Many agreements are confidential, and the negotiations that lead to them even more so . . . . Even where it is possible for researchers to gain access to formal negotiations, many critical decisions are taken away from the negotiating table, and the way decisions are revealed in a negotiation may indicate little about who was and was not influential in making them.Footnote 66
Theorizing about fairness in international environmental law brings into particular focus concerns about procedural fairness. Scholarship on fairness gravitates towards procedure as the site of most significant potential for fairness reforms.Footnote 67 What is often lacking is a determination of the end that procedural fairness ought to serve. Procedural fairness thus often fails to reference distributional fairness. The very concept of transnational conservation contracts poses fairness problems. Agreements for conservation performance payments, for example, may delink conservation from community development and deprive local communities of their own legitimate aspirations for land use. In other words, contractual mechanisms as market instruments allow the international conservation community to ‘buy off’ resistance to conservation initiatives – creating ‘tree museums’ and, in the process, keeping local populations at subsistence levels of income and economic development.Footnote 68
A further fear is that it becomes the foreigners’ agenda for conservation that dominates and ultimately replaces or erases the conservation agenda of the local community. The very framing of contracts as instruments of conservation can be problematic in a North–South context, as these agreements promote a view of environmental concerns as discrete issues, rather than inseparable from economic realities.Footnote 69 Further, contracts can perpetuate problematic assumptions of ‘dark and poor peasant masses destroying forests and mountainsides’Footnote 70 until deals with developed-country conservation organizations bind them to a different reality. These agreements can thus feed into problematic but prevalent assumptions that developing countries are too busy addressing the demands of poverty alleviation to seriously attend to environmental protection.Footnote 71
Transnational conservation contracts represent the purchasing power of a transnational elite and the power of the market to decide to offset environmental damage, when the price is right. Law is not neutral in this process. Further empirical work is needed to trace the extent to which powerful states (or non-state actors within powerful states) use conservation contracts as a mechanism for exporting legal norms. This article has pointed to several examples in which domestic-law reforms have been necessary to pave the way for conservation contracts. Other agreements, such as the Memorandum of Understanding between Guyana and Norway on forest conservation,Footnote 72 mandate participation in transnational legal processes such as the Extractive Industry Transparency Initiative. These examples of domestic and transnational legal reforms speak to the deeper, and less apparent, public significance of contractual agreements.
7. Conclusion: fairness and transnational environmental law
The aim of this article is to flag the emergence of transnational conservation contracts as a phenomenon deserving of wider empirical and theoretical study. It argues for the relevance of law in interpreting both individual contracts and the practice of contracting. Conservation contracts provide an opportunity to think about fairness in transnational environmental law in a way that extends rather than simply recycles fairness thinking in domestic and international law. These fairness concerns reflect the lingering discomfort that accompanies a move away from state-based negotiated forms of environmental governance. Fairness in transnational environmental law means adjusting to roles in which non-state actors are not just campaigners, but are the principal architects of environmental agreements; where access to information is threatened by private agreements and closed-door negotiating processes; where identifying sources of authority and channels of accountability becomes complicated. Fairness concerns in transnational environmental law thus often centre on the risks that arise from a rescaling of environmental governance and the consequent impact of private contracts on constituencies that have little say in their negotiation.
Transnational conservation contracts are but one example of a turn to contracts as a mechanism for governing transnational issues generally, and environmental issues more specifically.Footnote 73 Negotiated contracts between polluters and regulators are developing as a regulatory option in Europe and in a number of other countries.Footnote 74 Climate contracts are advocated as a ‘second-best’ but practical approach to address global warming.Footnote 75 Supply-chain contracts increasingly govern environmental standards and food safety.Footnote 76 It is time for lawyers and legal scholars to step up their critical engagement with transnational conservation contracts. Absent this engagement, we will continue to witness law's marginalization to the ‘merely technical’ issues of contract law.
