property, politics and wildlife conservation

11
Pergamon Workf De~elopmenr. Vol. 23, No. 8, 1265-1275, 1995 pp. Copyright 0 1995 Elsevier Science Ltd Printed in Great Britain. All rights reserved 0305-750x/95 $9.50 + 0.00 0305-750x(95)00045-3 Property, Politics and Wildlife Conservation LISA NAUGHTON-TREVES * and STEVEN SANDERSON* University of Florida, Gainesville, U.S.A. Summary. - Wildlife conservation has been a public issue since time immemorial, and a cause of increas- ing concern over the course of the 20th century. Today, much of the dispute over wildlife conservation involves property and property rights. As the scope of wildlife resource governance expands to the global level, it has come into contact with conflicting property claims and has generated new claims involving maritime and landed resources, wildlife, and intellectual property. This paper focuses on wildlife conser- vation, and specifically on the angle of property rights, arguing that the political determination of property regimes is critical to conservation, especially in regard to wild fauna. Property rights concerning wild fauna, differ from other property rights claims, including landed property, intellectual property, and rights governing the use of wild flora. It is also argued that no single property form is adequate for wildlife con- servation. Property as an institution is incomplete; the exceptional character of wild fauna and the property rights that govern it are organic I. INTRODUCTION Wildlife conservation has been a public issue since time immemorial, and a cause of increasing concern over the course of the 20th century. Today, much of the dispute over wildlife conservation involves prop- cry, defined as patterned ways in which people relate to each other in reference to some object (McCay, 1992, p. 195), and property rights, the claims by one actor of exclusive rights against all other potential claimants in relation to some object (Cohen, 1978, p. 159; Bromley 1989, p. 202; Epstein, 198.5, p. 22). Competing property claims over wildlife are as old as hunting itself. Only in recent years, though, has the proprietary dimension of wildlife come to dominate the discourse of conservation. As the scope of wildlife resource governance expands to the global level, it has come into contact with conflicting property claims and has generated new kinds of claims involving maritime and landed resources, wildlife, and intellectual prop- erty. In June 1992, with great fanfare, the United Nations Conference on Environment and Development (UNCED) issued a Biodiversity Convention, designed to protect wild fauna and flora, ecosystems, and genetic material, all key elements of biological diver- sity. The Convention’s strategy recommends that pro- tection of property rights over the earth’s biota will enhance conservation and the fair distribution of rewards from “sustainable use” of the biosphere. The Convention is truly a document befitting a nation-state system in the process of globalizing its political agenda and managing its environment as an integrated whole. Torn between the demands of “the global agenda” and the prerogatives of nation-states, the Convention stipulated in its first paragraphs that the conservation of biodiversity is a global political issue, a matter of common concern to all humankind; but that nations have sovereign rights over their “bio- logical resources” (UNCED, 1992). The US initial opposition to the Convention revolved around another property rights issue: what the White House and the genetic engineering industry considered to be inadequate provisions for patent pro- tection for US lirms engaging in international genetic prospecting - intellectual property protection (Newsday, June 14, 1992, p. 73). As the United States drafted its final position, revealed at the time of its accession to the Convention, virtually the entire dis- cussion revolved around a confused representation of landed rights, wildlife property rights and intellectual property rights - all appropriate dimensions of the issue, but poorly distinguished in both the UNCED and the US agenda. The President called for “fair and equitable sharing of benefits arising out of the utiliza- tion of genetic resources,” and committed the United * We would like to thank Arun Agrawal for his thoughtful insight throughout the development of thi\ paper. Oehra Rose assisted with the collection of reference material Flnul revision accepted: March 3. 199s. 126.5

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Page 1: Property, politics and wildlife conservation

Pergamon

Workf De~elopmenr. Vol. 23, No. 8, 1265-1275, 1995 pp. Copyright 0 1995 Elsevier Science Ltd

Printed in Great Britain. All rights reserved 0305-750x/95 $9.50 + 0.00

0305-750x(95)00045-3

Property, Politics and Wildlife Conservation

LISA NAUGHTON-TREVES * and

STEVEN SANDERSON* University of Florida, Gainesville, U.S.A.

Summary. - Wildlife conservation has been a public issue since time immemorial, and a cause of increas- ing concern over the course of the 20th century. Today, much of the dispute over wildlife conservation involves property and property rights. As the scope of wildlife resource governance expands to the global level, it has come into contact with conflicting property claims and has generated new claims involving maritime and landed resources, wildlife, and intellectual property. This paper focuses on wildlife conser- vation, and specifically on the angle of property rights, arguing that the political determination of property regimes is critical to conservation, especially in regard to wild fauna. Property rights concerning wild fauna, differ from other property rights claims, including landed property, intellectual property, and rights governing the use of wild flora. It is also argued that no single property form is adequate for wildlife con- servation. Property as an institution is incomplete; the exceptional character of wild fauna and the property rights that govern it are organic

I. INTRODUCTION

Wildlife conservation has been a public issue since time immemorial, and a cause of increasing concern over the course of the 20th century. Today, much of the dispute over wildlife conservation involves prop- cry, defined as patterned ways in which people relate to each other in reference to some object (McCay, 1992, p. 195), and property rights, the claims by one actor of exclusive rights against all other potential claimants in relation to some object (Cohen, 1978, p. 159; Bromley 1989, p. 202; Epstein, 198.5, p. 22). Competing property claims over wildlife are as old as hunting itself. Only in recent years, though, has the proprietary dimension of wildlife come to dominate the discourse of conservation. As the scope of wildlife resource governance expands to the global level, it has come into contact with conflicting property claims and has generated new kinds of claims involving maritime and landed resources, wildlife, and intellectual prop- erty.

In June 1992, with great fanfare, the United Nations Conference on Environment and Development (UNCED) issued a Biodiversity Convention, designed to protect wild fauna and flora, ecosystems, and genetic material, all key elements of biological diver- sity. The Convention’s strategy recommends that pro- tection of property rights over the earth’s biota will enhance conservation and the fair distribution of rewards from “sustainable use” of the biosphere.

The Convention is truly a document befitting a

nation-state system in the process of globalizing its political agenda and managing its environment as an integrated whole. Torn between the demands of “the global agenda” and the prerogatives of nation-states, the Convention stipulated in its first paragraphs that the conservation of biodiversity is a global political issue, a matter of common concern to all humankind; but that nations have sovereign rights over their “bio- logical resources” (UNCED, 1992).

The US initial opposition to the Convention revolved around another property rights issue: what the White House and the genetic engineering industry considered to be inadequate provisions for patent pro- tection for US lirms engaging in international genetic prospecting - intellectual property protection (Newsday, June 14, 1992, p. 73). As the United States drafted its final position, revealed at the time of its accession to the Convention, virtually the entire dis- cussion revolved around a confused representation of landed rights, wildlife property rights and intellectual property rights - all appropriate dimensions of the issue, but poorly distinguished in both the UNCED and the US agenda. The President called for “fair and equitable sharing of benefits arising out of the utiliza- tion of genetic resources,” and committed the United

* We would like to thank Arun Agrawal for his thoughtful insight throughout the development of thi\ paper. Oehra Rose assisted with the collection of reference material Flnul revision accepted: March 3. 199s.

126.5

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1266 WORLD DEVELOPMENT

States to “the concept that benefits stemming from the use of genetic resources should flow back to those nations that act to conserve biological diversity and provide access to their genetic resources.” More specifically, the official letter of transmittal conveying the Convention to the US Senate promised to “strongly resist any actions.. .that lead to inadequate levels of protection of intellectual property rights” (President of the United States).

While the intellectual property dimension to biodi- versity conservation is new, much of the tradition of international conservation agreements, from the International Whaling Convention to the Convention on International Trade in Endangered Species of Flora and Fauna (CITES), can be reduced to international society’s efforts on behalf of the commons to restrict some actor’s exclusive (i.e. sovereign) (Cohen) rights to harvest and use wildlife or to destroy their habitats.

Despite the historical and legal depth of wildlife property regimes, and the obviously central role of property in the post-UNCED era, the academic litera- ture on biodiversity conservation either ignores the question of property entirely (McNeely, 1988; Myers, 1983; Western and Pearl, 1989), or tends to treat prop- erty regimes as policy instruments, without clarifying the ethical and political issues arising from different property traditions and claims (Conybeare, 1980; BOSTID, 1992; Young, 1989). Those who do engage the property question more directly tend to favor cat- egorical solutions, which advocate privatizing natural resources (Deacon and Johnson, 1985; Rubin and Fish, 1994), expanding public prerogatives in the pro- tection of natural resources (Kohm, 199 I), or ceding property rights to indigenous or “local” peoples (Taylor, 1988; Cox and Elmqvist, 1991). Only rarely is there a careful stratification of such proposed strate- gies, in which the recommended regime is associated with the nature of the good (Aylward, 1992).

For these reasons, this paper focuses on wildlife conservation, and specifically on the angle of property rights, arguing that the political determination of prop- erty regimes is a critical variable in the conservation of endangered species, especially in regard to wild fauna. Property rights concerning wild fauna, accord- ing to this argument, differ from other property rights claims, including landed property, intellectual prop- erty, and rights governing the use of wild flora. We further argue that no single property form is adequate for wildlife conservation. Property as an institution is incomplete (Perrings, Folke and Maler, 1991), cer- tainly for the broad, complex agenda of conservation. The exceptional character of wild fauna and the prop- erty rights that govern it are organic. Wildlife, like water and petroleum, is a “fugitive resource.”

In order to understand better the changing nature and extent of property rights in global efforts to con- serve wildlife, it is necessary to discriminate more carefully among kinds of property rights and to ques-

tion the comprehensiveness of a property rights approach to conservation. This paper makes three arguments.

- property rights typically focus on landed rights, without sufficient attention to wildlife property rights or intellectual property rights, both of which are important to the biodiversity conservation agenda today; - a focus on wildlife property rights points up some of the weaknesses of a landed property approach to biodiversity conservation, illuminating some of the intractable elements of tension between sovereign states and transnational conservation needs and some of the extreme variability in the relationship of land to wildlife; - any property-based approach to biodiversity conservation, land-based or not, is inadequate, based as it is on parceling out rights to elements of biodiversity without considering the dynamics of natural systems as a primary value. Property rights in conservation are most often asso-

ciated with land, especially the designation of public or private land units as nature reserves. Such a limited orientation does not offer a comprehensive approach to wildlife conservation. Property regimes in land determine the opportunity costs of conservation vs. use. Property regimes in both land and wildlife deter- mine who has rights over the disposition of wildlife, what strategies for conservation and use societies find optimal, what the distribution of benefits will be, and, importantly, who bears the costs of conservation and use (Bromley, 1982). The intersection of landed prop- erty rights and wildlife property rights stratify har- vesting, use and ownership among human individuals and societies. Intellectual property rights are some- what more derivative, as they typically focus on “improvements on nature,” not on nature itself. The bulk of the debate over intellectual property rights concerns “rents on knowledge or innovation,” which are derived from, not immanent properties of, natural systems.

The wildlife property question asks “Whose wildlife is it?” and “How do we govern it?” That IS. what social distribution of wildlife is most appropriate for the purposes of conservation, and how do issues ot political domain relate to the physical requirements for wildlife survival? These questions arc doubly important when wildlife conservation is largely about politics, defined here as the realm of publicly con- tested issues, in which state and civil society dctcr- mine the allocation of values among a politically constituted community. Thus, when the invcstigarlon of political relationships behind wildlife conservation reveals the publicly determined distribution of hlotic wealth and Its derivative processes and products among that public.

On a less theoretical plane is a critical con\crvallon question: “Under what property rcplme(s) ih aildlilc

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PROPERTY, POLlTlCS AND WILDLIFE CONSERVATION 1261

most likely to be conserved?” Policy makers in recent years have consistently argued for privatization of property rights in the service of conservation, the most subtle expression of which suggests that privatizing rights makes people stakeholders in conservation (WRI, 1992, pp. 16-17; Rubin and Fish, 1994). But such simplistic policy alternatives, which more often argue for some property form or scale of conservation action over another, miss the central problem of relat- ing wildlife to their habitats: the proprietary arrange- ments governing human appropriation or preservation of wildlife are not necessarily consistent with those required to protect ecosystems.’

Finally, this paper raises the question of what scale and institutions are most appropriate to wildlife man- agement, partly from an ecological perspective, but also from the standpoint of the political process of delineating, negotiating, allocating, and adjudicating human rights to wildlife. Analysis of scale issues requires us to stratify property rights according to what they protect best, and leads us ultimately to address what kind of wildlife it is that humanity wants to preserve.

In order to answer the question “Who owns the wildlife?’ and its correlate “Who governs wildlife and its habitat?’ we need to revisit the sociopolitical meaning of wildlife. The term “wildlife” was first for- mally used in 1937 in association with the formation of the Wildlife Society in the United States (Meine, in Harris 1992, p. 210). The assumption that wildlife is a generic term referring to all undomesticated flora and fauna (Ryder and Boag, 1981) became the point of departure for the principal surveys of US wildlife law (Bean, 1983; Lund, 1980). But, because wildlife is a socially and politically defined idea, many notions of wildlife appear in history; they vary according to the constituency defining them and their historical con- text. For example, English law separated “royal” or “superior” animals (swan, roedeer, whales) from “inferior” wild fauna (Bean, 1983, pp. lO-12), and defined property rights according to status criteria intended “to preserve game from contact with a base gullet” (Lund, 1980, p. 9). Many Progressive-era US preservationists followed tradition in defining wildlife as game species only - anything worth a bullet.

US wildlife policy is important to international wildlife policy, both because of the importance of the US in global conservation regimes and because of the influence of US wildlife training programs in devel- oping countries. US wildlife policy has come to define wildlife as animals of economic value (that value being expressed in the market), and North American wildlife management concentrates mainly on game and predator species (Allen, 1962; Leopold, 1933; Peek, 1986, p. I).

Those interested in the conservation of species depleted by market hunting restrict the definition in order to achieve the political and ecological goal of

replenishing populations of endangered species reduced by human use (Tober, 1981). Many give less priority to “lower animal forms,” either conceptually or politically (Tobin, 1990). So, sea urchins might receive less attention than sea otters, even though both may play critical roles in near-shore fisheries. Modern wildlife managers concentrate on “free-living animals of major significance to humans” (Peek, 1986, Chapter l), but often in management practice exclude minor “nongame” species that may provide important sources of protein to a community, such as reptiles or minor rodents (Rose, 1993). Environmental activists, on the other hand, have been accused of using the most modest species to obstruct development (viz., the desert pupfish and the snail darter used against large infrastructure projects) (Tobin, 1990).

This paper is confined to free-ranging terrestrial and aquatic vertebrates and invertebrates. The defini- tion is not hierarchical and does not give conceptual preference to any species or trophic level. It does not include wild flora, however, which is an important and different limitation. If the time scale of analysis were expanded, one could argue that wild plants are also appropriate for consideration as a fugitive resource, but that is beyond the purview of analysis here. Breaking with management traditions, our definition is not restricted to use or commodity value, though often a strong association is found between threats of extinction and economic value in the marketplace. We have restricted our attention to wild animals in order to focus on the special problems of fugitive wildlife resources,

2. THE HISTORICAL DEVELOPMENT OF WILDLIFE PROPERTY RIGHTS

Much theoretical analysis of property rights is devoid of historical content, or uses historical patterns as allegory for broader theoretical points (Alchian and Demsetz, 1973; Hardin, 1968) or is not confined to a single cultural dynamic. Property rights are socially derived over historical time, and the particular con- stellations or “bundles” of rights that obtain in any given society are a historical product. Because the use of wildlife, along with other natural resources, has changed with macrohistorical processes (vi:., the impact of the Normal invasion on English forest use rights, or the change in Great Plains property rights with the conquest of the Amerindians), the analysis in this paper insists on a historical dimension.

Wildlife property rights in history are most easily traced through the law, where property regimes are codified. This is not to say that property rights do not exist outside formal legal institutions, only that the law is a convenient cultural artifact for analysis. In fact, customary institutions may be stable and sophis- ticated instruments for the social allocation of biota

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and continue to be important governing instruments in wildlife use and conservation (Marks, 1984; Asibey, 1978). But they are less likely to be formally orga- nized or codified, and more difficult to trace. The focus here on politics and law, mediated by the state, biases the analysis in favor of the modem period, and undoubtedly imposes a Western template on develop- ing countries, whose wildlife legislation was often a product of contact with empire.

Wildlife law is really about the relationship among land, people and wildlife. The claims people can make on wildlife and the legitimation of those claims by a political entity (typically, the state) or by an extra- political institution depend on a relationship to the land or the wildlife. So, indigenous or original peoples in Canada base their special claims to wildlife on tra- ditional practices, local knowledge, and the relation- ship of hunting range and game to cultural identity (Tanner, 1 979).2

In monarchies, royal prerogatives over wildlife have been common. In early English law, the forest itself was defined by the sovereign’s grant to wildlife of the privilege of living within the officially protected forest domain of his kingdom. A forest lost its charac- ter once it lost its wildlife (Harrison, 1992, p. 72). Later, after the Norman conquest, the privilege was not universally granted to all wildlife, but to certain animals, over which the King reigned supreme, with lower forms left to the commons. Moreover, the monarch ceded certain proprietary rights to individu- als, based on their status and heritage. Royal forests and deer excluded commoners, on pain of death, lead- ing to one parliamentarian’s wry comment that

[The] object is to preserve game: they have no objectton to preserve the lives of their fellow-creatures also, if both can exist nt the same time; if not. the least worthy of God’s creiltures must fall -the rustic wlthout a soul, - not the Christian partridge - not the immortal pheasant - not the rational woodcock, or the accountable hare (Lund, 1980, p. 117).

The forest, by the time of Dante, was known not by its animals, but by the elimination of predatory and nuisance wildlife, and the elevation of nobler species to royal attention (Harrison, 1992, p. 8.5). Still, the state held sway over the disposition of forests and some wildlife through the crown.

The United States, with its open frontier, liberal political tradition and lack of aristocracy, broke with many English traditions. The US invested wildlife property rights in general to the commons, not to indi- viduals. But the state did not “own” wildlife as an entity, as does Canada (Ryder and Boag, 1981): the state acted as the organizational embodiment of the citizenry. Following the tradition of constitutional restraint, wildlife law was relegated to the states, leav- ing federal law anemic until the 20th century. Many

racial, class and ethnic sanctions did appear at the state level, continuing the status-seeking exclusionary tra- dition of upper class sportsmen so familiar in the English tradition. Blacks and poor whites were gener- ally excluded from certain hunting rights in the East, and a complex system of game rights evolved in the South, based on the diurnal or nocturnal habits of the fauna, and the perceived quality of the animal and its hunters. Deer, bear, and waterfowl were white men’s pleasures; opossum, raccoon and other “lower ani- mals” were for blacks and poor whites (Marks, 1991). Similar regional hierarchies based on racial and ethnic exclusion were to be found outside the South. In the West, for example, a particularly elaborate body of status- and ethnic-driven exclusionary law surrounded Chinese shrimpers in California (McEvoy, 1986). Presumably, this linkage between the status of wildlife and its human predators suffuses culturally specific notions of “game” and “nongame” species.

Latin American wildlife law followed the US pat- tern, at least to the extent that it has grown up in the context of an open, but rapidly shrinking frontier. As in many multiethnic societies of the world, in which relatively stable, recognized “traditional” communi- ties harvest wildlife, local cultural prerogatives have been protected, even formalized in law. But as the physical and biotic frontier has disappeared, the con- test over wildlife has intensified, and the conditions for the continuation of those communities have dete- riorated. Following Boserup (1981), it is reasonable to argue that growth in population and advances in tech- nology make sustainable harvests more problematic, especially with a closing land frontier.

Wildlife in countries with open frontiers generally has gone unregulated until human-animal interactions changed to a point that threatened the survival or abundance of the wildlife in question. In the United States, wildlife laws followed hard on the heels of market hunting commercial species such as bison, ducks, salmon or black bass to extinction (Bean, 1983). Wildlife law followed a sense of scarcity and urgency. Whether or not that threat was always based on strong scientific evidence of scarcity and endan- germent, or simply a constructed perception of scarcity, is not important to the ultimate result: a grow- ing body of wildlife law, specifying property rights over wild animals.

The earliest codified Latin American wildlife law addressed the sale and transport of hides, prohibiting export of regulated species. That tradition has contin- ued. But with the evolution of indigenous and “local peoples” rights, the elaboration of long-term usufructs to low-output producers, and the differentiation of society into new orbits - urban and rural, producer and consumer, subsistence and market -the issue of rights to wildlife has become both more important and more complicated. In many countries, from Zimbabwe to Colombia, the property regimes govern-

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PROPERTY. POLITICS AND WILDLIFE CONSERVATION 1169

ing wildlife themselves now make up a landed mosaic of private property, common property and public property, with significant differences in the attendant rights to harvest wildlife.

This is not to say that scarcity was the determining factor in the evolution of wildlife law. It might be argued, for example, that the closing frontier also coincided with growing state capacity. In much of continental Europe, constraints on hunting corre- sponded with the “inforestation” of wildlands, which extended to include game hunting as a symbol of royal power (Wolfe, 1970, p. 9). Later, petty sovereigns extended their arbitrary rule over game by raising the spectre of the common man giving in to “venatic pas- sion,” which might lead to anarchy (Wolfe, 1970, p. 1 I). In the British empire, it extended royal preroga- tives to “King’s game” in the colonies, imposing state property either on previous royal game traditions (South Asia) or on common property resources (in Africa). The important point here is that a closing frontier, the rise of the state, a perception of scarcity and a growing body of law coincide. The body of for- mal law typically followed tribal law or common tra- ditions, but those were soon forgotten in the codification of postconquest history.

3. WILDLIFE AS A FUGITIVE RESOURCE

Wildlife is a fugitive resource. It constitutes a nat- ural endowment appropriated by humans and thereby turned into a resource, but the appropriator only gains exclusive rights over the resource at the point of appropriation. In much common tradition, game ani- mals are ownerless until wounded by a hunter (pro- prietor). This distinguishes fugitive resources from both landed resources and intellectual property. Landed resources are more easily governed as a per- manent right, because the landed resource is immobile and susceptible to survey and demarcation, Intellectual property is based on innovation, not just physical endowment, and is reasonably susceptible to governance through trade secrets, patent, and copy- right law (Acharya, 1992; Rubin and Fish, 1994). Wildlife. in contrast, is generally considered property only under certain circumstances, and its mobility and fugitive habits make it especially difficult and inter- esting to property theory.

Two analytical dimensions help us understand wildlife as a fugitive resource: the point at which wildlife become property, and the determination ot what parts of society are legitimate claimants in rela- tion to wildlife property rights. Because of their tran- sient and transitory status, wildlife are not normally considered property until they are killed or claimed. The law governing fugitive resources confronts the so-called common pool problem, in which property rights are only invested in the individual when the

resource is taken, so harvesters are induced to harvest as quickly as they can in order to establish their pro- prietary rights. The body of law and literature describ- ing these problems concentrates on oil, gas and water more than wildlife. In the wildlife area, literature on fisheries dominates.

Alchian and Demsetz (1973, p. 20), among others, have assumed that in wildlife, too, the common pool problem provokes a tragedy of the commons, in which the system ineluctably moves toward maximum har- vest. This is attributed to a communal system (actually a confused rendition of an open access right) in which rights to wildlife are defined by the act of harvesting, which requires the death of the animal. Whether or not one agrees with the dubious assumption that all peo- ple are driven by property rights in their hunting prac- tices, it is true that states and societies have focused on the abridgment of harvest rights (the right to the chase) in trying to regulate wildlife conservation.’

The state may address this common pool problem by restricting the right to harvest, but it does not stop at regulating the quantity harvested by abridging the right to harvest. It also determines, in specific instances, what the social rules of distribution are among different claimants in society. So, in US wildlife law, for example, indigenous peoples are given specific preferences according to their aborigi- nal rights, often codified in some form through treaties (vi:., Puyallup Tribe vs. Washington Department of Game, 433 US 165 (1977). Or, residents of a state are given preference over nonresidents (vi:., McCready vs. Virginia, 94 US 391, 1876). Or a state tries to exclude all non-nationals from harvesting rights (Takanashi vs. Fish and Game Commission, 334 US 410, 1948). Other national states have analogous legal provisions. Today that law extends beyond the traditional land-wildlife relationship to include for the first time even the genetic material of wild fauna. In addition. the question of the sovereignty of a state to regulate its wildlife property against external claims is wide open to question, especially as the knowledge of natural and life histories of game animals increases, and the boundaries of state prerogatives shift over historical periods.

The recent discussion over sovereignty in relation to biodiversity conservation raises the second analyti- cal dimension of wildlife as a fugitive resource: the issue of legitimate claims on wildlife use or protec- tion. What is the appropriate institutional scale at which wildlife conservation norms should be set’! Who are the legitimate proprietors in wildlife law’! Is the institutional context of wildlife use and protection the same as the regime of governance‘? Is wildlife pro- tection within the purview of the aborigmal hunting range. the national state. or the international commt~- nity? Can the Biodiversity Convention (or other sim- lar international documents) claim with any integrity that “biological resources” are both the common con-

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cem of all humankind and at the same time the sover- eign property of nations in which they (now) occur?

These questions point out one of the most glaring difficulties in wildlife property rights and suggest an irreconcilable difference between international and national approaches to wildlife governance. If it is true, as is often argued, that uncertainty in property rights leads to resource degradation (Scott, 1955; Demsetz, 1967), the resolution of where sovereignty (and therefore property) lies in wildlife management is critical to conservation. This, in turn, suggests that the effort to govern wildlife through property regimes is especially burdened by conflict and imprecision over the boundaries of the political system in which property rights are allocated, given the fugitive nature of the resource. The problem lies not only with the issue of national sovereignty vs. the global commons, but with the different property regimes and scales of social organization that correspond to the behavior (and protection) of different species.

The delineation of wildlife as property is all the more difficult because ecological geography rarely corresponds with political geography. The range and distribution of wildlife species often exceed political jurisdictions. Adding further complexity to the dilemma of political versus ecological boundaries are the problematic life history traits of many species. A few common examples clarify this point. Many migra- tory bird species such as vireos, warblers, and fly- catchers spend more than half the year in their wintering grounds in the tropics, while their breeding grounds are in the north (Terborgh, 1989). Conservationists, alarmed by the birds’ precipitous decline during the past 40 years, alternatively blame governments of tropical countries for allowing defor- estation, as well as the US government for allowing urbanization to fragment and transform eastern US forests, or humans for benefiting predators in breeding ranges (Terborgh, 1989; Bohning-Gaese, Taper, and Brown, 1993). These birds ultimately belong neither ecologically nor politically to any single country. Who, then, is responsible for their welfare? At what level are management strategies best designed to con- serve wildlife? In the case of the migratory monarch butterfly, the actions of local governments may be of profound consequence for the survival of the species. A municipal-level decision to cut down 25 hectares of mid-altitude forest in Mexico may signify a loss of 10% of the species’ entire overwintering habitat (Harris, 1993). The introduction of exotic species locally (e.g., Nile Perch in Lake Victoria) may have implications for an entire ecosystem that crosses sev- eral political boundaries (Kaufman, 1992).

Large wildlife species require freedom to move across landscapes more extensive than most political jurisdictions. In Zimbabwe, for example, many rural communities must be involved for elephant and other large game populations to be sustained (Child and

Peterson, 1991). Yet conflicts regarding the distribu- tion of hunting revenue arise when an elephant resides principally in one community’s assigned area (threat- ening farmers’ lives and livelihoods), but is shot in another community’s area, and then dies in a third community’s area (J. Murombedzi, pers. comm.). Of fundamental importance is the concern that the larger the management area, the more likely that individuals will overexploit common property resources for short- term personal gain at the expense of long term sus- tainable management (Kiss, 1990). This is countered by the real prospect that larger management areas actually increase flexibility and enhance the right kind of alliances for conservation (Sanderson, 1995).

It is not only a question of the appropriate manage- ment scale for local wildlife management, but the political determination of the boundaries of a man- agement system itself. This returns us to a central theme in the common pool resource literature: the degree to which self-organizing systems are compe- tent to govern a resource (Lansing, 1991; Ostrom, 1993). Wildlife is, in fact, a resource especially vul- nerable to outsider exploitation. The hypothesis sug- gested here is that the more jurisdictions involved in a habitat, the more “outsiders” are implicated in the sur- vival or extinction of a given species. In addition, by definition, in order to create coalitions of outsiders who might militate on behalf of wildlife conservation, large-scale human involvements are required. On the other hand, the weight of the literature on local insti- tutions and their role in conservation suggests that out- siders are particularly perverse influences on the creation of norms for sustainability (Spooner, 1987).

Wildlife species with life history traits that chal- lenge their delineation as property are especially vul- nerable to extinction. Animals with big ranges and big distributions challenge managers at local, national and international scales. This is particularly important as the management scale goes beyond the national boundary. If the political discourse governing prop- erty rights in multiethnic societies is difficult within states, it is magnified when the international system tries to establish property rules governing wildlife in a system of nearly 200 national states with multiple legal traditions and extraordinarily varied wildlife laws. Even a comprehensive catalog of those laws and their enforcement is unavailable.

As if these problems were not enough, nongame species are especially difticult to treat in the traditional literature on property and natural resource manage- ment. It is difticult to ascertain their value (Perrings. Folk and Maler, 199 1). and value is one of the impor- tant numeraires in both the property rights literature (Gordon, lY56) and the tradition of wildlife manapc- ment. Nonpamc species arc potentially important to local subsistence. They may also hold aesthetic. reli- gious or symbolic sipniticance to certain member\ of both local or international society.

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Wildlife is a resource requiring sophisticated tech- nical management, particularly as it gets rare. Ecological stochasticity makes it all the more difficult. Our limited scientific capacity to predict long-term fluctuations and management response in wildlife populations further confounds property delineation. Plant and animal populations fluctuate in natural set- tings in response to myriad factors. Designating and monitoring sustainable harvest rates is difficult. Scientific understanding of wildlife fluctuations, dis- turbance response, and resiliency is still limited. Animals with “natural” boom and bust cycles in pop- ulation (e.g., the Andean condor) are especially diffi- cult to monitor. With each scientific uncertainty comes an equally vexing social uncertainty in allocat- ing rights to user populations.

Such complexity in management exacerbates con- flicts between scales of management and ownership. If no one can tell if an animal is threatened or not, har- vesting rates will be even more fiercely contested. For example, within the CAMPFIRE program in Zimbabwe, biologists from the National Park Service set annual offtake rates allowed for a community har- vest (Child and Peterson, 1991). Recently, participat- ing communities have protested the imposition of these hunting limits and demanded that they be able to set their own quotas (J. Murombedzi, pers. comm.). In the context of a politics of community self-determina- tion and participation, it is difficult to deny such pre- rogatives; scientifically it is difficult to justify them. Considering the periodic incidence of severe drought and constricted access to traditional migration routes, it is difficult to tell if elephants are in trouble or not. There may be too many at one scale (Zimbabwe, per- haps) and not enough at another (Africa). Should southern Africa “pay” for East African conservation problems? This is a shorthand version of one of the most challenging problems in elephant conservation policy.

This cross-scale issue of management is more com- mon than the elephant problem might suggest. In fact, it extends in principle to all open systems. Cyclical booms and busts have confounded managers of inter- tidal shellfish, such as California abalone or Chilean molluscs. The Northwest United States and Canada have confronted this problem in the complex property conflicts over anadromous fish (e.g., salmon). Debates rage on about the impact of commercial fishing on the sustainability of shoaling pelagic fish in the Pacific anchovy and sardine fisheries (McEvoy, 1986). The cases could be extended to migratory mammals (e.g., Minke whales), sea turtles, migratory birds, or megafauna with enormous ranges, such as the grizzly bear.

Protecting a big area, which is conflictive enough, is nevertheless still insufficient for wildlife survival. Spatial heterogeneity must be maintained, which introduces another complicating dimension to the

allocation of use rights and makes a prima facie case for in sim conservation. We must consider size, con- nectivity, and ecosystem texture in order for the sus- tenance of processes such as genetic exchange, disturbance dynamics and recolonization. A new quandary in wildlife management is the macro-scale changes in habitat generated by global environment change. Present-day protected areas are by no means flexible enough or large enough to adjust to prospec- tive phenomena of habitat (and wildlife) “emigrating from parks” as climate changes (Davis, 1986).

The quest for appropriate management scales must focus on central issues of international politics: How does society balance the long-term welfare of the “global commons” with user rights of the local popu- lation? How does one political structure claim prop- erty rights to the wildlife of another? Under what circumstances are international agreements more appropriate than national efforts? If conservation and use are congruent, why is use by the international community preferable to local use? Is sustainability the rationale? If so, how have the criteria of sustain- ability been scientifically demonstrated? Permeating these questions is the fundamental problem of how to justly assign ownership of wild animals.

4. UNDER WHAT (LANDED) PROPERTY REGIMES IS WILDLIFE EFFECTIVELY

CONSERVED?

Wildlife and its habitat is currently managed within three basic types of landed property - state (or pub- lic), private and communal. The conventional arrange- ment is to designate wildlife as state property. Typically the state establishes national parks or reserves in which to conserve this property for long- term public welfare. Due to their status as public domain, national parks can be established at a larger scale than most private or communal landholdings. In fact, the spatial scale of protected areas worldwide is quite large, occasionally even dwarfing the size of small countries (WCMC, 1992, Part 3). This is impor- tant for the survival of species requiring several thou- sand hectares of undisturbed habitat. Throughout much of the world, however, overly bureaucratic and underfunded state agencies have demonstrated a lim- ited capacity to protect wildlife effectively in these areas. Moreover, public land is often historically a default category, made up of “abandoned” or unpopu- lated lands not claimed by others - hardly a worth- while sorting criterion for biodiversity conservation.

In response to the state’s limited success in protect- ing wildlife, some conservationists propose private ownership as an effective alternative for managing species. These individuals argue that in many coun- tries, private property receives maximum legal and political support. allowing for strict protection of

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wildlife from overexploitation by nonowners. This argument marries well with the neoliberal bias in nat- ural resource conservation, which emphasizes market solutions and “destatization” of resource management policies (McNeely, 1988; Repetto and Gillis, 1988).

The privatization imperative fails on two counts. First, private landholdings may prove inadequate in size for the long-term conservation of many species. Private landholdings are by definition disposed to fragmentation and reallocation over time, through the market. Lest this be used as a justification for propos- ing new grand estates, which would certainly fall flat in developing countries, public landholdings are also vulnerable to private owners’ prerogatives in the mar- ket, which may disregard the public good by overhar- vesting wildlife or converting areas of natural habitat.

Common property is a third property arrangement that is similar to private property in its exclusion of nonowners. Communal ownership of game species is widespread among subsistence hunting societies who have developed long-term management techniques such as the rotation of hunting areas within forested areas (Vickers 1991). These common property regimes are optimal for meeting the immediate resource needs of a local community. In the develop- ment context, however, these systems collapse under conditions of rapid population growth, colonization, technology change, and market penetration (Chicchon, 1992). The breakdown of common property systems eliminates putative regulations on individual use of wildlife, leading to open access. This condition of undefined property rights seriously threatens wildlife survival because without clear prop- erty rights and incentives, no one will invest in secur- ing future benefits from a resource. Clearly, one of the dangers of relying on common property arrangements is their vulnerability to external pressures.

No single property form is universally appropriate for wildlife management. Rather, conservationists must establish property rights appropriate to each con- text, The conventional model of wildlife conservation - preserving game in inviolate parks and reserves - has proven inadequate. Biologists now recognize that most parks and reserves are too small to support pop- ulations of large vertebrates (Newmark, 1987), or to sustain ecological processes that generate and main- tain diverse fauna1 assemblages (Harris, 1993). It appears that few countries will devote more than 10% of their territory to protected areas, and even less sure that such a percentage will be the most appropriate land for conservation purposes.

5. WHOSE WILDLIFE IS IT ANYWAY?

The ownership of nongame species is especially difficult to assign because the corresponding stream of benefits may be unknown or invisible - certainly

invisible to the market and unavailable in standard sta- tistical sources. Yet, it is clear that the proprietary rela- tionships governing nongame species are linked intimately to the larger web of strategies employed by small-scale, low-output producers. The integrity of their habitat and their survival as species are linked to the competing or complementary use of other species, the connectedness of one important habitat to another, and the reflection of local use patterns in the larger contexts of market and development. So, for example, as Bodmer has shown (forthcoming), the vulnerability of large-bodied primates in the Peruvian Amazon is a complex function of the exploitation and scarcity of other species, including small rodents, cervids, and peccary, and the relationship between the hunting community and the demand (market or subsistence) for each species.

Similarly, the connection of wildlife as a fugitive resource to society and its markets implies privilege, and the kinds of allocative decisions dictated by the distribution of wealth in society. Again, Bodmer (forthcoming) shows that the conservation priorities for primates in the Western Amazon do not coincide with the pressures of human demand for primates in the region. Instead, first attention is paid to smaller pri- mates for biomedical research, which account for a minute fraction of total primate harvest. Biomedical research considerations are not necessarily consistent either with the real structure of demand for wildlife or with the conservation needs of the community as a whole. Instead, they organize conservation priorities according to the social privilege and market power of the medical community and its putative constituen- cies. This is akin to the argument that the rain forest must be preserved in the hopes that industrial society might find cures for diseases in its flora and fauna. A case in point is that of the Rosy Periwinkle. Found in Madagascar’s rainforests, and marketed as a powerful cure for leukemia, the Rosy Periwinkle is celebrated as a conservation success story. Yet Madagascar has captured a negligible portion of the pharmaceutical profits derived from this plant (Rubin and Fisher 1994, p. 27).

6. CONCLUSION

In analyzing the evolution of property rights in rela- tion to wildlife conservation, the following themes have emerged as appropriate to guide future conser- vation-oriented research and action:

(a) Local property systems are becoming homoge- nized in the context of market integration, state ascendancy, and population growth. Few “endemic” property systems persist. While this elevates the prospect of a common political agenda for conservation, it does not augur well for local communities’ management preroga-

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(b)

(C)

tives - even though local institutions are cur- rently the focus of the international conserva- tion and development communities (WRI, IIJCN, UNEP 1992). Land management and species conservation, the primary numeraires of conservation, are increasingly driven by global political and eco- nomic values; because those values are gener- ated off-site they are not sensitive to the biophysical prerequisites of conservation over the long term. No existing property form (private, public, commons) is adequate for conservation of bio- logical diversity. Universal prescriptions for appropriate property arrangements are impossi- ble; rather, they depend on social and ecologi- cal context.

Perrings et al. (199 1) observe that our property rights are inadequate to deal with a resource such as biological diversity, and that economists do not have the tools to deal with questions involving so many externalities. Ostrom (1990) and Sanderson (1994) among others, describe the deficiencies of political science in developing models that explain why some property regimes work in some settings and not in others. Virtually everyone recognizes the need for more research regarding the viability of different property regimes for sustainable use of the environ- ment. The question that derives from such a call is whether more theoretical work or more site-derived inductive research is more useful to the task at hand.

This paper reaches two conclusions. First, the irre- vocable transformation of land by industrial society and the dawning sense of responsibility beyond regional or national boundaries challenges us to expand our definition of property beyond land and beyond national sovereignty. Some environmentalists have labeled the 1990s as the decade of institutional adjustment, referring to the adjustment of organiza- tional responsibility for the environment. Our analysis suggests, however, that perhaps the environmental cri- sis calls for reform at a more fundamental level - within the institution of property. The process by which such evolution takes place is unclear; many pre- fer to avoid the question by calling on an “amorphous, fictitious, and omnicompetent entity called the gov- ernment” (Ostrom, 1990. p. 2 16) or for that matter the market. Others rely on the evanescence of “local insti- tutions,” often without regard to their robustness in the face of external pressures or their authenticity.

Second, whatever the expanded notion of property, it is inadequate for conservation. The requirement that biodiversity be submitted to the valuation of a market society validates traditional concepts of wildlife, but does not address concerns of community or landscape ecology; nor does it give priority to “lesser animals.” A comprehensive Biodiversity Convention would rec- ognize a broader mandate for conservation, tran- scending not only the nation-state as the political unit of management, but economic valuation as the cur- rency of “caring for the earth.”

NOTES

I. A more interesting turn on this question might lead to the Conference. conclusion that property rights should not be conferred on any owner without first determining the owner’s respect for 3. There is ltttle to indicate that property theorists appreci- the survival of the natural system coincident with that prop- ate any difference between the economics or time-scale dif- erty (Ralston, 1991). This ecological economics approach to ferences between exhaustible or nonrenewable resources property, however interesting, will not be defended here. such as oil and gas vs renewable resources, including

wildlife. 2. A raft of literature on this subject is available through the proceedings of the annual North American wildlife 4. These cases are treated more fully in Bean (1983).

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