CONSULTATIVE OPINION: EAS CC 9/2000

INTERNATIONAL COURT OF ENVIRONMENTAL ARBITRATION AND CONCILIATION

In view of the request for a Consultative Opinion drawn up by the conservationist Association HARITZALDE with regard to the protection of the meridian frog (Hyla Meridionalis) and its habitats, the Chamber of Consults composed by the hereinabove professors agrees as follows.

1. BACKGROUND

1.- By means of a written document recorder in International Court of Environmental Arbitration and Conciliation on 10 January 2000, Mr. Xabier Rubio Pilarte, President of Conservationist Association HARITZALDE, request that this International Court pronounce judgment in the case of protection of Meridian Frog (Hyla Meridionalis), either in the form of opening a procedure for Conciliation with different competent Administrations on the subject, or in the form of issuing of a Consultative Opinion with regard to the case.

The requested Conciliation has been expressly dismissed bay the Government of the Province of Gipuzkoa, and elapsed in the case of the other relevant agency because of the absence of any answer to the petition of ICEAC for conciliation form the Regional Government of the Basque Country.

In consequence of the refusal of Conciliation the form of a Consultative Opinion has been prepared.

2. The Meridian Frog (Hyla Meridionalis) is considered the only amphibian endangered of extinction of the Basque Country according to the Basque Catalogue of Endangered Wild Fauna and Flora..

Hyla Meridionalis is listed in the appendix II of the Convention of the Conservation of European Wildlife and Natural Habitats among strictly protected the fauna species.

Nowadays, the situation of Hyla Meridionalis is extremely critical, with the possibility of its disappearance in few years if adequate measures are not made. There are only two habitats in the southeastern area of Medizorrotz: Berio and Gurelesa. Reproduction if Hyla Meriodionalis is effective only in Gurelesa dam, where 85% of adults are concentrated.

The lands of Gurelesa dam were sold to the promoting company NEINOR. This company has intention to refill the dam and construct aver its surface and industrial pavilion as a part of the business area.

According to the information of HMC Demetrio Loperena Rota land use plan for this territory was changed in favour of intended building activity.

Conservationist Association HARITZALDE formally request before the Administrations on 26 March 1999 the declaration of Gurelesa dam as a protected habitat, according to the Act 16/1994, on nature conservation of the Basque.

3. Country, but till the date of presentation of the petition to the International Court of Environmental Arbitration and Conciliation (I January 2000) did not receive nay formal answer.

Haritzalde has presented on September 1999 before the Provincial Government of Gipuzkoa some different alternatives for the area of Gurelesa dam. We have not unfortunately any information about these alternatives, so that we cannot take them into consideration. Any way, we can suppose that they cannot influence seriously the substance of the case.

HARITZALDE also mention on page 2, last section of this petition, its intention to construct new pounds as new habitat of Hyla Meriodionalis. This Consultative Opinion will react on that idea bellow with more details.

2. CONSIDERATIONS

1. The whole case must be considered from the point of view, that till the moment, when the petition of HARITZALDE was presented to the International Court of Environmental Arbitration and Conciliation no damage was caused to the object of the petition (Hyla Meridionalis) and that no damage probably was caused till the moment of the presentation of the draft of this Consultative Opinion, because the natural habitat of Hyla Meridionalis in Berio and Gurelesa still exists. That means, that from this point of view this Consultative Opinion cannot come to conclusion, that till now any legal rule was seriously broken.

The only exception form this statement could be perhaps the fact, that land use plan was sometimes changed during last years in favour of the intended building activity in the area of Gurelesa dam. We have not unfortunately good knowledge about the use of mentioned area before the change of land use plan, but us flows indirectly out form HARITZALDE´s petition, this area was never before declared in land use plan as a protected area.

In consequence of these facts the whole case must be considered form the point of view of prevention – to prevent the destruction of natural habitat of Hyla Meridionalis and to prevent extinction of that species.

2. As a non legal form of prevention is the intention of HARITZALDE to construct new ponds as future habitat of Hyla Meridionalis.

This idea must be considered form two point of view.

a.- We understand that HARITZALDE would like to assure at any price the continuation of existence of Hyla Meridionalis in Basque Country.

b.- On the other side it could mean that HARITZALDE gives up the fight in favour of that endangered species, in which the force of law could and should be used.

The information about the idea of constructing new pounds could be very dangerous, because it could be very dangerous, because it could serve as argument for company NEINOR, which has intention to refill the present dam, natural habitat of Hyla Meridionalis, and the construct over its surface and industrial pavilion.

Beside that, the petition informs that reproduction of Hyla Meridionalis in existing habitats (Berio and Gurelesa) is effective only in Gurelesa dam, where 85% of adults from that habitat are concentrated

The destruction of Gurelesa dam could have as probable consequence the definite extinction of this strictly protected species.

The construction of new ponds can be considered only as a substitute solution with all problems and eventual risks (construction of new habitats connected with high sums of financial means, transfer of Hyla Maridionalis to new habitat, certainly accompanied with high losses of the population of this frog, incertitude if Hyla Meridionalis will be adaptable on new habitat and if its reproduction under new condition will go on etc.).

3. All adequate legal provisions from the field of Spanish national law as well as from the field of international conventions can and should be used as a preventive measure for the protection of Hyla Meridionalis.

1. Spanish national legislation

The petition mentions two national legal rules: Order 167/1996, Basque Catalogue of Endangered Species of Wild Fauna and Flora, and Act 16/1994, on Nature Conservation of the Basque Country.

We unfortunately do not dispose with these legal rules, but they certainly contain, like analogue rules of other European States, many legal provisions aimed at the protection of endangered species and their habitats. We recommend to operate for the reason of protection of Hyla Meridionalis with concrete regulations of these legal instruments and to show which of them could be broken by destruction of natural habitat of Hyla Meridionalis.

2. International conventions

Several regulations of some international conventions are fully applicable on given case. It is necessary to underline, that these regulations are aimed predominately on preventive measures. The sense of these regulations is to protect directly endangered species and their habitats which are necessary for their life and reproduction, any forms of possible danger, in present time or in the future.

Presumption of the applicability of regulations contained in international conventions is of course the fact that Spain is a Contracting Party.

a/ Convention on the Conservation of European Wild-life and Natural Habitats (Bern, 19 September 1979)

The aims of this Convention are to conserve wild flora and fauna and their natural habitats. Particular emphasis is given to endangered and vulnerable species (Article 1, par.2). Article 2 binds the Contracting Parties to take measures to maintain the population of wild flora and fauna.

Fully applicable for the protection of Hyla Meridionalis is Article 3, par. 1: "Each Contracting Party shall take steps to promote national policies for the conservation of wild flora, wild fauna and natural habitats, with particular attention to endangered and vulnerable species, especially endemic ones, and endangered habitats, in accordance with the provisions of this Convention".

As derives from the background of this case, Hyla Meridionalis is an endangered species, vulnerable species, endemic species and its natural habitat is now seriously endangered.

Chapter II of the Convention deals with the protection of habitats. For the case of Hyla Meridionalis are provisions of this chapter of highest importance, because the whole problem of the case consists at this moment predominately in assuring full protection of the natural habitat of Hyla Meridionalis as presumption of future development of the protected species.

Endangered natural habitats are protected by provisions of Article 4, par. 1: "Each Contracting Party shall take appropriate and necessary legislative and administrative measures to ensure the conservation of the habitats of wild flora and fauna, especially those specified in the Appendices I and the conservation of endangered habitats".

Appendix II of the Convention contains the list of strictly protected fauna species. Only three species of frogs are included into this list –Hyla Meridionalis among them (besides Hyla Arborea and Hyla Sarda). That means that Hyla Meridionalis and its habitats is considered as an object of highest protection in all the actions which could influence the development and existence of that species.

Another obligation is clearly formulated in Article 4, par. 2, which states: "The Contracting Parties in their planning and development policies shall have regard to the conservation requirements of the areas protected under proceeding paragraph, so as to avoid or minimise as far as possible any deterioration of such areas".

In case of Hyla Meridionalis living in the dam Gurelesa, where its habitat should be completely destroyed by the construction of business area, does not come into consideration eventual minimalisation of damage. The only possibility in this case is to avoid "deterioration" (in this case complete destruction), that means to conserve present natural habits of this species untouched in original state.

Chapter III of the Convention contains regulations aimed at the protection of the species.

Each Contracting Party has overtaken obligation (Article 6) to take appropriate and necessary legislative and administrative measures to ensure the special protection of the wild fauna species specified in Appendix II.

For the cases of protection of Hyla Meridionalis, as a strictly protected species, following provisions of this Article can be applied:

-par. b/ -the deliberate damage to or destruction of breeding or resting sites is in particular prohibited,

-par. c/ -the deliberate disturbance of wild fauna, particularly during the period of breeding, rearing and hibernation, insofar as disturbance would be significant in relation to the objectives of this Convention, is in particular prohibited.

The intended construction of a business area over the present natural habitat of Hyla Meridionalis could not be considered otherwise than an intended violation of Bern Convention from two points of view: violation of provisions aimed at protection of habitats and violation of provisions aimed at protection of species.

B/ Convention on biological Diversity, Rio de Janeiro, 5 June 1992

Besides provisions regulating general measures for conservation and sustainable use (Article 6), very important for the case of Hyla Meridionalis are provisions which operate with in-situ conservation. In-situ conservation according to Article 2 "means conditions where genetics resources exist within the ecosystems and natural habitats"

Obligations of Contracting Parties concerning In-situ conservation are regulated in Article 8. All paragraphs of this article could be applicable more all less effectively on the case of protection of Hyla Meridionalis. As most important could be considered following paragraphs. The Convention obliges Contracting Parties:

A/ to establish a system of protected areas or areas where especial measures need to be taken to conserve biological diversity;

B/ to develop, where necessary, guidelines for the selection, establishment and management of protected areas where special measures need to be taken to conserve biological diversity.

C/ to regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with view to ensuring their conservation and sustainable use;

D/ to promote the protection of ecosystem, natural habits and the maintenance of viable populations of species in natural surroundings

F/ to rehabilitate and restore degraded ecosystem and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies.

Article 14, which contains provisions on impact assessment and minimizing adverse impacts obliges each Contracting Party to introduce appropriate procedures requiring environmental impact assessment of its proposed projects tat are likely to have significant adverse effects on biological diversity with view to avoiding or minimizing such effect and, where appropriate, allow for public participation in such procedures.

The fact that the possibility of conciliation proposed by the conservationist association HARITZALDE has been expressly dismissed by the Government of the Province of Gipuzkoa can be considered as violation of provisions of Article 14 of the Convention on Biological Diversity

C/ Convention on Wetlands of International Importance especially as Waterflow habitat (Ramsar convention), 5 February 1971, as amended by the Protocol of 3.12.1982 and by the amendments of 28.5.1987

The applicability of Ramsar Convention for the protection of natural habitat of Hyla Meridionalis comes eventually into question, but is partly legally risky

Wetlands are for the purpose of the convention defined as " areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing fresh, brackish or salt, including areas of marine water the depth of which at low tide does nor exceed six meters"

Both endangered natural habitats of Hyla Meridionalis, Berio and Gurelesa, doubtless correspond to this definition of Wetlands

Problem with the use of provisions of this Convention for the case of Hyla Meridionalis derives from the fact, that every wetland, which should be protected by this convention, must be internationally significant and must be included into the list of Wetlands to International Importance. This condition is not at this moment fulfilled and I have doubts, if HARITZALDE could at all achieve recognition of international significance of Berio and Gurelesa habitats.

Anyway, let us suppose that certain general sense it could be possible to operate very carefully with some provisions of the Convention on Wetlands in favour of Hyla Meridionalis.

D/ Other international Conventions

aa/ Convention on protection of Migratory Species (Bonn,23,June 1979) is not applicable for given case. Hyla Meridionalis Perhaps could be considered as migratory species in largo sensu, but in the case of Gurelesa does not cross Spanish frontier.

bb/ Convention on Protection of Migratory Species (Washington 3 March 1973) is not also applicable for given case. Hyla Meridionalis is not in this case objet of the international trade)

1. As regard the merits

By virtue these considerations the petition of Conservationist Association HATITZALDE can be considered as justified fir following reasons:

A/ the object of the petition, species of Hyla Meridionalis(as well as its natural habitat) is a strictly protected fauna species(Convention on the Conservation of European Wildlife and Natural Habitats). The planned destruction of Hyla Meridionalis in the Basque Country

B/ the intended construction of a business park over existing natural habitat of Hyla Meridionalis would mean the violation of more legal provisions aimed at the protection of this strictly protected species and which are fully applicable on given case:

aa/ Order 167/1996, Basque Catalogue of Endangered Species of Wild Fauna and Flora;

bb/ Act 16/1994, on Nature Conservation of the Basque Country;

cc/ Convention on the Conservation of European Wildlife and Natural Habitats;

dd/ Convention on Biological Diversity.

-Conservationist association HARITZALDE may request that the competent Authorities change the land use plan of the area of Berio and Gurelesa and declare this area as a protected area, natural habitat of Hyla Meridionalis.

-Conservationist association HARITZALDE may prepare, in due co-operation with competent Authorities, status of mentioned protected area, in which appropriate and necessary legislative and administrative measures to ensure the conservation of habitat of Hyla Meridionalis and conditions of undisturbed the development of that species shall be regulated .

• In order to do so it may be provided with the Court’s legal aid.

At the request of the Secretariat of the International Court of Environmental Arbitration and Conciliation, we have honour to propose this Consultative Opinion, the HH.MM.CC. Zdenek Madar(Reporter), Ramón Ojeda Mestre, Deirdre Exell Pirro, Luis Caeiro Pita and Miguel Patino, all of them Members of the Chamber of Consults therefore appointed.

ENQUIRY of the Secretary General Assistant to certify that this document with its twenty-five pages is given in witness whereof the aforementioned and joined Opinion of the Chamber of Consults.

San Sebastián, 21 December 2000.

Demetrio Loperena Rota

Secretary General Assistant