Protecting environmentally-sensitive areas and promoting tourism in "the back patio of the United States:" thoughts about shared responsibilities in ecosystem and biodiversity protection.

AuthorCrawford, Colin
  1. 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.

  2. WHY PROTECTED AREAS IN THE DOMINICAN REPUBLIC (OR ANYWHERE ELSE) MATTER

    1. 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)

    2. 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...

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