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COPYRIGHT 2007 University of California at Los Angeles, School of Law
I. INTRODUCTION
II. WHY PROTECTED AREAS IN THE DOMINICAN REPUBLIC (OR ANYWHERE ELSE) MATTER A. What is an Environmental Protection Area? B. Extent of Dominican Biodiversity C. Importance of Protected Areas D. Tourism: Engine of Protection or Destruction? 1. Lack of Economic Diversity 2. Distributional Justice Concerns: Privileged Tourism and Environmental Harm 3. Long Term Environmental Damage 4. Social Consequences of Environmental Damage III. LEGAL REGULATION AFFECTING DOMINICAN PROTECTED AREAS A. Dominican Law and Policy of Protected Areas 1. Framework Law 64/00 2. Sectoral Law for Protected Areas 3. Sectoral Law for Biodiversity Protection 4. The Problem of Presidential Decree Laws a. Recent Decree Laws as Threats to Environmental Protection b. "Liberated Areas" B. Lack of Coherence Between Laws & Efforts Affecting the Environment and Protected Areas C. Projects to Promote Implementation of Laws D. Enforcement of Dominican Protected Areas Law IV. INTERNATIONAL LAW AND POLICY A. The Extent to Which Rich Nations Have an Obligation to Help Protect Biodiversity in Poorer Nations B. International Instruments to Protect Biodiversity 1. The Rio Declaration and Agenda 21 2. Convention on Biological Diversity 3. Cartagena Protocol on Biosafety C. Regional Controls: Implications of CAFTA-DR D. CAFTA-DR's Environmental Provisions 1. Article 17 2. Key Definitions within CAFTA-DR 3. Advancing Environmental Claims within CAFTA-DR V. SEEKING SOLUTIONS FOR BIODIVERSITY PROTECTION A. Responsibilities of Host Nation B. Dominican Case C. Responsibilities of Richer Nations 1. Global Responses 2. A Global Solution of National Dimensions
I. INTRODUCTION
Leonel Fernandez, President of the Dominican Republic, famously declared that his nation of over nine million people (1) exists in "the back patio of the United States." (2) The locution is striking from a Dominican president, notably because of the repeated involvement--some would say interference--of the U.S. in Dominican affairs during the course of its history. (3) But Fernandez is a sophisticated and erudite scholar, as well as a politician, and can speak with authority on the history of the Americas from before the Monroe Doctrine and since. (4) Without question, he used the phrase with deliberation. (5) For Fernandez, the phrase thus doubtless represented many things, among them the economic and social dependence of the Dominican Republic upon the United States, and the history of expansionism and territorial control that marks nearly two centuries of U.S. involvement with the Caribbean nation. (6)
The phrase also resonates in the area of environmental law and policy, although likely this did not cross Fernandez' mind when he used it. Specifically, the proximity of the Dominican Republic to the continental U.S. and to its Caribbean possessions to the east--Puerto Rico and the U.S. Virgin Islands--begs questions about the designation of particular areas for special environmental protection, management and oversight. At a general level of inquiry, this is to ask whether richer nations like the U.S. may have responsibilities to protect ecosystems and biodiversity beyond their territorial borders without a corresponding right to interfere in the affairs of those nations. Specifically, in the context of this paper, Fernandez' phrase compels us to ask whether the United States bears responsibility for environmental protection in the Dominican Republic. This is a complicated question and needs to be unpacked.
Importantly, too, this question has ramifications that go well beyond the relations between a small and, in geopolitical terms, relatively unimportant country and the current world superpower. To ask such a question on its surface raises the specter of a reassertion of colonial power and so has historical and political reverberations that need exploring well beyond the particular example of U.S.-Dominican relations. In addition, such a question demands an examination of the extent of responsibility by powerful, richer countries to other nations--whether neighbors or not--under the maturing system of global environmental law. Moreover, the question asks us to consider the extent to which, irrespective of international or regional treaty commitments, one nation bears responsibility for the environmental effects of its actions. Put another way, if the Dominican Republic is really in our back patio, what role, if any, do we bear in keeping it--as part of a property over which we have some dominion--in order?
This article seeks to answer that question and, in the process, to provide some answers. In Part II, it will briefly lay out the urgency of strengthening the Dominican system of environmental protection areas, both for that nation and for the region of which it is a part. Part II thus endeavors to outline the importance of protected areas as the fulcrum of a larger plan of environmental protection aimed at protection of everything from pristine environments to densely settled urban areas. It also will look in particular at the Dominican struggle to preserve biodiversity in the face of the promise of expanded tourist development. The tourism example is a significant one, not only as regards the Dominican Republic but throughout the world, since, for many poorer nations, tourism promises to bring much-needed economic development, which puts enormous strain on the environment and on natural resource use. Finally, Part II will undertake to locate the role of Dominican protected areas within a larger, regional context. Part III will detail the existing legal responses to such protection, looking at Dominican legal obligations. In doing so, Part III will elaborate on some of the competing tensions and obligations present in Dominican legislation affecting protected environmental areas, especially as they relate to the sometimes competing goals of environmental protection and rapid mass tourism development. Part IV will explore the particular roles and responsibilities, if any, of the United States and other richer nations with respect to the protection of environmentally sensitive areas in the Dominican Republic. Part IV will do this by examining existing multilateral regional and international obligations that might serve to balance competing values of environmental protection, particularly with respect to preserving biodiversity, on the one hand, and economic development on the other hand. In this, Part IV particularly notes the underlying tension in any such action by the U.S., in light of the historical, political and economic implications of any such activities. Once again, the question of tourism--and how it should be managed looms large over this discussion. Part V will then identify a solution that asserts responsibility for enforcing the impact of economic development on biodiversity with entities located outside the Dominican Republic in nations whose economic power is putting that biodiversity at risk.
II. WHY PROTECTED AREAS IN THE DOMINICAN REPUBLIC (OR ANYWHERE ELSE) MATTER
A. What is an Environmental Protection Area?
At its most general, an environmental protection area is an ecosystem or portion of an ecosystem that is deemed worthy of safeguarding from complete or limited human interference for reasons related to larger environmental protection and resource conservation goals. For purposes of this paper, however, the definition needs to take account of differences in land use rights and responsibilities. A protected area shall be understood as a natural area, whether public or private, that is regulated by rigid rules designed to assure its long term use in order to preserve characteristics, whether biological, economic, social or cultural, of benefit to humanity and the other biota of which we are a part. (7)
Designation of environmental protection areas is a product of at least three phenomena. Historically, the concept has its origins in the effort in the United States during the late 19th century to establish a system of national parks, notably with the creation of the Yellowstone National Park. (8) At the very least, an environ mental protection area corresponds, in the U.S. concept, to a federal or state park or forest. Second, at a legal and political level, the concept of a protected area is a response to the 1992 Earth Summit, in which the world community first formally recognized the importance of strictly delimiting the use of some lands not just for environmental protection but for long term economic development as well. (9) Thus, an environmental protection area can constitute more than state-held lands such as parks and forests. As a result, worldwide since 1992, there has been a dramatic increase in the numbers of countries that have enacted or strengthened protected area legislation. (10) As such, protected areas are an aspect of ecosystem management. (11) Third, environmental protection areas reflect advances in scientific understanding. Specifically, protected areas are a concrete application of the realization that, if we wish collectively to sustain biological life, we must respond by protecting not just individual species or small parts of an environment, but must respond holistically to its management. (12)
B. Extent of Dominican Biodiversity
In this article, I do not make any pretensions to treat exhaustively the subject of biodiversity protection, a topic that has already received extensive treatment in various contexts, from governmental and international reports, to studies conducted by non-governmental organizations and academic institutions. (13) It is sufficient to observe, therefore, that the Dominican Republic (14) contains one of the densest concentrations of biodiversity in the world. Within its 48,442 square kilometers are 5,600 plant species, 20 land mammal species, and 303 bird species. (15) In one park alone, the Madre de las Aguas Conservation Area (so named because it supplies water to nearly 50% of the nation's population), approximately 90% of the conservation area's amphibian and reptile species, 43% of its butterfly species, 10% of the bird species, and 94% of the bat species are unique to this area. The solenodon, a small shrew-like mammal found only on the island of Hispaniola, has been in existence for 30 million years. The hutia, a rare rodent, still exists in the country. Of the 303 birds found there, 27 can be found nowhere else, among them the Hispaniolan woodpecker and the narrow-billed tody. (16) In addition to these well-documented species, new species are discovered throughout the Caribbean with regularity, (17) suggesting that the above numbers are conservative.
Why do these numbers matter? Again, I need not traverse ground that has been well covered by others. It should be sufficient here to observe that biodiversity protection--which is best made possible by the establishment of a system of protected areas, as now exists in the Dominican Republic--has various benefits. Among the most important of them are the aesthetic and moral values of respecting the nature of which we are a part. (18) Of equal importance, because they are rich sources of potential economic wealth, are the possible development of pharmaceuticals, (19) as well as the protection of hydrological and other natural resources. (20)
C. Importance of Protected Areas
What further merits stressing is the particular importance and role of protecting biodiversity in poorer countries. (21) As the first Dominican Environment Minister, Frank Moya Pons, explained, referring to the economic development of an area known as the Northwestern Line, a northwestern segment of the country along the Haitian border that is both one of the driest and one of the most mountainous areas in the Republic, containing the highest peak in the Caribbean, Pico Duarte: (22)
... protected [biodiversity] areas offer a series of environmental services that, although difficult to value, without which human life would be much more difficult ... Take the environmental services that are offered by the forests in the national parks of the Cordillera Central [the central mountain range bisecting the country]. Without these woods, without this forest, we would not have water here in the Northwestern Line. [The area] would be left with very little water to sustain the agricultural revolution that has occurred in the country in the last 50 years to convert the Northwestern Line into a zone of agricultural food production* The Northwestern Line was a desert, and such a desert that it was known as "the No Man's Land of Santiago." Later it began to be called the Northeastern Line. But it was called No Man's Land because it didn't have people. When we started to open canals, there began the planting of rice, bananas, later plantains, and now tobacco is being planted. And the Northeastern Line is being converted into one of the zones of greatest economic growth and of the highest population growth. (23)
In other words, as Dr. Moya Pons' example reminds us, protected areas matter not just because they might provide those with access to natural resources the opportunity to enjoy a walk through the woods that is more varied and richer in flora and fauna than might otherwise be the case. This is worth emphasizing because a common feature of opposition to such areas and similar ecosystem protection measures in the United States and other richer nations is to characterize these measures as flights of fancy of rich and privileged environmentalists bent on preserving their own access to nature's glories. (24)
On the contrary, protected areas matter because, in addition to preserving the variety and wonder of multiple species, they serve to assure long term, collective social and economic interests. As the American Academy for the Advancement of Science recognized nearly a quarter century ago:
[C]ountries that fail to plan their development strategies in coordination with resource conservation and environmental management could be incapable of maintaining progress in health, food, housing, energy, and other critical national needs for more than a few decades. (25)
This is a lesson often ignored in richer countries like our own, (26) and no less so in countries like the Dominican Republic, for at least two reasons. First, the limited physical dimensions of the Dominican Republic pose more immediate challenges than a larger, continental area. As a former Dominican official charged with responsibility for wildlife protection noted: "[a] characteristic of the Dominican Republic is that it is constituted by its limited territorial extent." Such limitation reflects an elemental requirement for the design and implementation of standards for the conservation of renewable natural resources. The state of deterioration in which these vital resources are found requires even more dedication of efforts in the search for guidance oriented to their conservation. (27) Second, the Dominican Republic is undergoing an aggressive national push to further develop the nation's natural and scenic resources into tourist destinations. (28) A major conflict emerging in the country concerns the degree to which these developments will be environmentally sensitive. (29) In addition, the country continues to suffer a critical energy shortage that promises in the short- and long-term to threaten its ability to be economically competitive. (30) As a result, the importance of strengthening the role of environmental protection areas in Dominican law, society and the economy can hardly be overstated.
D. Tourism: Engine of Protection or Destruction?
In 2005, a Dominican presidential decree emphasized the importance of tourism for the nation: "[t]he development of tourism is the highest priority of the Dominican State as an adequate measure for the advance of economic progress in the country." (31) One could hardly look for a more unblemished statement of national priorities. It is frequently touted as the solve-all solution for the nation's future economic growth. (32)
On its face, this is entirely understandable in a comparatively poor country with relatively few exploitable resources and an abundance of sun and sand. Many of the agricultural commodities that once helped sustain the country now face depressed global prices. The most notable of these commodities is sugar. (33) As a result, it is not surprising that the Dominican Republic sees its future in the "global economy" built on the development of the service sector and, more specifically, in tourist services.
Yet there are several dangers presented by such a strategy. The remainder of this section shall detail those dangers. In particular, this discussion will strive to lay the groundwork for a tourist policy that is both socially and environmentally responsible in the long term.
At a minimum, unbridled tourist development presents four serious areas of concern. First, it fails to pursue a diverse economic policy, and in so doing risks repeating past economic judgments that have harmed the country. Second, the nature of the tourist enterprises being developed raise serious social, environmental, and land use justice concerns. Third, the environmental impact of such projects threatens to do long term environmental damage that might easily be avoided were the country to make other choices. Finally, the social consequences of these long term environmental harms are dangerous and avoidable.
1. Lack of Economic Diversity
The histories of Caribbean countries like the Dominican Republic, Cuba, and Haiti have long included reliance on monocultures. Although this history is arguably more severe in the case of Cuba and Haiti than their eastern neighbor, (34) it is nonetheless true that from Spanish colonization to Rafael Trujillo, the island's dependence on few crops has limited its economic prospects. This is because, in the Dominican context, limited numbers of crops have existed hand in glove with a highly unequal distribution of land, in which the richest 10% of the population has enjoyed well over half of the nation's wealth. (35) In addition, limited crop types require higher inputs of external resources, notably pesticides and fertilizers. (36) Thus, limited crop types, while permitting consolidated land holdings, simultaneously limits employment opportunities (and thus income) for the many, strains the capacity of land to regenerate through crop rotation, introduces heavy volumes of toxics into the environment, and limits food selection.
Although the cause-and-effect relations are complicated here, one important consequence of this pattern of land use and resource exploitation is a population with widely divergent incomes. A large, impoverished population sustained by agriculture is also less well educated and, therefore, less well disposed to have the professional and intellectual resources to adapt and seek new employment, much less to innovate. (37)
Certainly it is true that the Dominican Republic is marked by a comparatively un- to poorly-educated population, with national illiteracy rates at about 18% (38) and insufficient basic education. (39) In part, at least, this is true because of the legacy of a deeply unequal agricultural economy based on limited products and operated by autocrats and their supporters. It would be regrettable, therefore, if the same model were repeated, as promises to be the case at present, with tourism not controlled just by a small domestic elite but, in a global economy, by members of a global elite. (40)
At a macro level, what this lack of diversity means, too, is that when and if tourism collapses as the preferred economic driver, so too do the nation's fortunes. Put more simply, there is no reason this or any country should set itself up so that tourism becomes the next sugar. (41)
2. Distributional Justice Concerns: Privileged Tourism and Environmental Harm
The current state of tourist development in the Dominican Republic also raises serious distributional justice concerns. Specifically, the development poses a range of environmental and land use justice issues.
To understand the crux of this problem, however, it is essential to appreciate the "all-inclusive" tourism model that currently dominates Dominican development of the industry. Tourist development in the Dominican Republic is clustered largely along the northern coast, from Puerta Playa towards the west and Las Terrenas (in the Samana Peninsula) towards the east, and along the eastern shore, in the stretch that runs north from Punta Cana to Bavaro. There is comparatively little historical tourism, despite the country's rich past. Even compared to a relatively new-to-mass package tourism nation like Cuba, or as compared to Old San Juan, Puerto Rico, for example, relatively few tourists make historic Santo Domingo a mandatory stop on their itinerary, despite the fact that it was the first European colonial capital in the Americas and boasts an array of notable colonial architecture, mostly clustered in the core Colonial Zone, construction of which was begun by Christopher Columbus and his family. (42) Similarly, despite an intriguing and extensive footprint left by the indigenous Taino inhabitants of the island, this is not a major feature of most of the country's tourist marketing. (43)
Instead, Dominican tourism is "inclusive" for the traveler. That is, most tourists arrive at a local airport and are whisked to their resorts by dedicated buses. The resorts provide a range of services and amenities--restaurants, shops, and recreational activities. By design, they are meant to look like a picture-postcard version of a Caribbean vacation: sun, sand, beach chairs, aquamarine waters and swaying coconut palms. The foreign visitor thus has virtually no need to leave the resort, and, indeed, most expect not to do so as they pay a single fee which includes everything from their airfare to abundant bar drinks. (44) In short, the all-inclusive Dominican resort is, in style and design, more like a cruise ship than anything else--one...
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