Value Ethics behind Biodiversity Conservation Law Fulya BATUR

Value Ethics behind Biodiversity Conservation Law Fulya BATUR, LL. M. Unité BIOGOV - Centre de Philosophie du Droit Institut pour la recherche interdisciplinaire en sciences juridiques Faculté de Droit

WE ARE LOSING BIODIVERSITY

WE ARE TRYING TO CONSERVE IT BUT WHILE DOING SO… IS IT MORAL TO PUT A MONETARY VALUE ON NATURE?

STRUCTURE 1. Introducing Ethics 2. Valuing biological diversity (Ask why do we conserve before establishing how to do it? ) 3. Enacting regulatory tools for conservation (Define normative prescriptions) 4. Adjusting polarized value systems (Humanist approach to economic valuation? )

1. Introducing Ethics and Legal Theory - What are norms? - Where do they find their legitimacy? Their validity (or existence)? - To what extent do moral judgments impact regulatory decisionmaking and the creation of norms? - To what extent do moral judgments impact the content of norms?

From Descriptive Judgment to Normative Discourse DESCRIPTIVE JUDGMENT FACTS (observed / verified through experience) : « This IS… » Genetic diversity is lost because of the uniformisation of modern seed varieties VALUE JUDGMENT AXIOMS (RIGHT or GOOD): « This OUGHT TO BE… » Genetic diversity should be restored (as insurance against future diseases) NORMATIVE JUDGMENT PRESCRIPTIONS: « We OUGHT TO DO… » At least 10 per cent of modern seeds’ revenue should be redistributed to gene bank preservation programmes

Defining « OUGHT TO BE » • Ethics: attempts to define what « ought to be » • Environmental Ethics; Aldo LEOPOLD (“land ethics”) • "An ethic, philosophically, is a differentiation of social from anti-social conduct. • An ethic, ecologically, is a limitation on freedom of action in the struggle for existence. ” • Objective? Articulate moral grounds for the protection or restoration of human environment • Means? Establish the foundation for the moral consideration of nonhuman natural or animal entities • Do we feel obliged to conserve biological diversity? Why?

2. Valuing Biodiversity in Environmental Ethics Reasons why you think biodiversity should be conserved? • We need it today / might need it in the future • Use values (associated with resource exploitation) • Food, fiber, fuel… ENVIRONMENTAL • Production of scientific knowledge ETHICS • We appreciate it • Aesthetic value (Pleasure/appreciation) • We think we should conserve it • Moral value Non-Use Values

Value Systems: Polarized Ethics • Strong vs. Weak Sustainability • Strong Sustainability (H. E. DALY) DUTY TO PROTECT • Maintenance human and natural capital intact (highest level) • Weak Sustainability (J. STIGLITZ, R. SOLOW) CAPACITY TO USE • Conservation natural capital unnecessary in view of growth • Optimal use of reproducible assets improves life standards (since capital substitutable) • Ethical transcription • John PASSMORE (1974), Man’s Responsibility for Nature • Ethical dichotomy between: • Cooperative stewardship • Despotic dominion DUTY TO PROTECT CAPACITY TO USE

Value Systems: Polarized Ethics CAPACITY TO USE DUTY TO PROTECT ANTHROPOCENTRISM ECOCENTRISM Instrumental / Utilitarian Value Intrinsic / Holistic Value Morally right if (now and in the future) promotes well-being, integrity and beauty of human community Morally right if promotes well-being, integrity and beauty of the biotic community Good if provides the means for the acquisition of something valuable OR produces greatest good for the greatest number ( « Bentham » ) Good in and of itself (not a means for acquiring satisfaction) Values derived from benefits brought to humans (desires, needs, purposes and the satisfaction of those) Values exist independently from humans, on their own Environmentalism is struggle for welfare and survival of humankind Environmentalism is enlightened selfinterest

Anthropocentric vs. Ecocentric : The Shallow and the Deep? DEEP SHALLOW

Anthropocentrism: Human-centred Ethics • Why? • Human dominion over nature • Nature is instrumental to our well-being • Value system? • Utilitarian theory: moral worth of actions determined through contribution to utility, be it happiness, pleasure or satisfaction • Nature valuable in proportion to the benefits brought to society • Cultural, educationnal, aesthetic considerations, financial gains • How? • Hierarchical value scale with humankind on top : all other values subordinated to our priorities • Rio Declaration’ 92: « Human beings are at the center of sustainable development. They are entitled to a healthy and productive life in harmony with nature »

Anthropocentrism: Shortcomings • Disregard for Evolutionary nature of valued object • Anthropocentric approach only cares for the « being » rather than the « becoming » (Ilya PRIGOGINE and Isabelle STENGERS, 1984) • Biodiversity is not static • Processes inherent to nature may be more ‘useful’ than entities in themselves (plant breeding, development of insect resistance…) • Human welfare does not always need environmental preservation • All instrumental values can be fulfilled through other outlets (our need for beauty and calm can be found in fine arts) • Exception for those functions ensuring the continuity of life (food, air and water), we need nature but maybe not in the future? Technological change • Failure to achieve environmental policy or conservation objectives • Conqueror image prevents preservation environment and will lead to its complete destruction • Not environmental ethic but human ethic! • « Arrogance of Humanism » (David EHRENFELD, 1981) • Failure to recognize the gravity of environmental degradation and humankind’s responsibility • More value to nature than merely its capacity to satisfy us?

Ecocentrism: Life-centred Ethics • Why? • All life forms are interdependent • Wilderness has intrinsic value and is non-renewable, thereby requires new ethics system • Solely referring to human-centered values is « shallowly arrogant » • Rejects central tenet of anthropocentrism (no exclusive or arbitrarily preferential consideration for human interests) • Value System? • Ecocentric / holistic theory where nature is valuable in itself • Need to describe non-human natural world in non-anthropocentric terms • Recognition of intrinsic value to nature best way to describe such premise • Certain « weak ecocentric » authors recognize the need for certain utilitarian values that go beyond mere resource value

Ecocentrism : Conceptualisation • Mysticist approach: Deep Ecology (Arne NAESS, 1973) • Holistic conceptualisation of nature as a self-regulating, interdependent whole: « Nature is more than the sum of its parts » • Rejects conception of « man-in-environment » : always in relation with nature • Modern ecological version of traditional mysticism: if no « greater whole » , then no reason to value nature for itself? • Promise of self-realization through communion with Nature (Cosmos, Gaia…) • Secular approaches: Obligation-based pragmatists? • Human scale of values is disturbed by nature independently of spirituality, welfare or contentment (David WIGGINS) • Not moral standing as such but rather Legal considerability of nature, as a subject of legal rights (Should trees have standing? Christopher STONE): « weak ecocentrism »

Ecocentrism: Shortcomings • Is Deep Ecology going too far? • Eco-fascism: need population decrease to save environment • Distinction between misanthropic (hate humanity - get rid of all human beings) and anti-anthropocentric (humans aren't most important species) • Is nurturing nature always good, since nature is inherently destructive? • HIV, malaria, cancer are all part of nature, which has an inherent destructive and selective instinct • Why should nature be completely inviolable? • Can Ecocentrism ever be non-anthropocentric? • Can intrinsic value exist objectively? Always subjective!! • How can intrinsic value be granted to beings without any sense of justice as we understand it? • Can the subject of valuation (nature) be separated from the author of moral valuation (human being)? • Lack of implementing force to constrain public policy • Globalised non-interventionist culture and economic libertarianism • If no economic incentive or proof of financial interest, no legislative change?

Economics in Environmental Ethics?

Rejecting Monetary valuation? • Many ethical and social commitments constitute a refusal of monetary valuation (RAZ, 1986) • Criticism towards « orthodox cost-benefit analysis » based on assumption that monetary value can be fixed • How much are we prepared to pay to preserve natural ecosystem, species, or individual? • How much are we prepared to accept as compensation for its loss? • How much benefits do we think are going to arise from its destruction? • Is it really a « value-neutral scientific basis to environmental policy? » • Surveys on the rejection of monetary valuation • Monetary values will never be able to capture what nature is to humanity (e. g. Bonaiuto et al. 2002) • Valuation is a not only a purely economic affair. Biodiversity is not simply a resource, but the object of ethical and social values which cannot be captured in monetary valuations (O’NEILL, 2007)

Economics of Environmental Ethics? Example of Invasive Species • Ecocentric approach • Need to be protected since have intrinsic value on their own • No monetary valuation should normally take place as they are part of a greater whole • There is never any benefit to the destruction of nature « except to satisfy basic needs » (what are those basic needs? ) • Anthropocentric approach • Need to be protected so far as they contribute to welfare: species’ contribution needs to be determined • Cost-benefit analysis • Can you make fuel with the species? Does it protect another species? • What is the damage done to agricultural biodiversity and production? The pressure put upon local diversity? BOTH TOO SIMPLISTIC ON THEIR OWN ?

Conundrums in « Visions of Nature » ? Common limitations and recurring interrogations in Environmental Ethics VIS-A-VIS THE OBJECT (Biodiversity) • Environmental Holism (more in Ecocentrism) • Defining the scope of the valued object • Do we value and should we thus conserve species as a whole? Ecosystems? Individual organisms? • Especially in ecocentric approaches, how to define values if no fixed degree of preference exist between different components? • Territoriality • Defining the borders of valuation • Nationally trivial maize species might be crucial for local population

Conundrums in « Visions of Nature » ? VIS-A-VIS THE SUBJECT (Human valuator) • Whose vision? • Policy-makers? Scientists? Economists? Practicing lawyers? All citizens (national, regional, local levels)? • Based on? • Constructivism: Social constructs, tied to social interactions and underlying cultural values • Realism: Reality on the field, geographical and biological thruth: nature exists and needs to be conserved • Intergenerational considerations • Defining time-frames and regard for future generations: externality from our ‘successive dictatorships’ • Should we taken into account the needs and benefits of future generations? As future / option values? Through other construct?

Inter- and Intra- generational Equity : New value system? • Why? • Feeling obliged to leave fair legacy in natural environment to future generations • Feeling obliged not to destroy livelihoods and natural environment of other humanbeings living on this planet • Inherent instinct for equity? Common ideal of social and environmental justice? • Value System? • Inter-generational equity: fair heritage for future generations • Intra-generational equity: fair use for current generations • How? • Safe minimum standards of biodiversity existence: no trespassing line • Benefit sharing obligations: compensation of biodiversity-rich by technology-rich

Inter- and Intra- generational Equity : New value system? • Should Intergenerational equity viewed as inherently anthropocentric? • Is it just Anthropocentric ethics viewed in framework of distributive justice? • Does it reinforce the fact the environment is simply a human resource?

STRUCTURE 1. Introducing Ethics 2. Valuing biological diversity 3. Enacting regulatory tools for conservation 4. Adjusting polarized value systems

3. Enacting Regulatory instruments • Difficulty to see practical implications of environmental ethics? • Moral valuation exists, yet biodiversity is still lost? Do people lie, why aren’t they motivated? • Response could maybe found • Studying the effect of polarized ethics on objectives enshrined in conservation law • Studying successful biodiversity governance schemes and identifying common grounds: BIOMOT project

From Descriptive Judgment to Normative Discourse DESCRIPTIVE JUDGMENT - Biological diversity is lost - Genetic uniformity is extending VALUE JUDGMENT ANTHROPOCENTRIC Biodiversity has value as long as it contributes to human welfare NORMATIVE JUDGMENT ECOCENTRIC Biodiversity has intrinsic value - Public Policy Choices PRESCRIPTIONS

Polarized Normative Discourse ANTHROPOCENTRISM ECOCENTRISM Instrumental / Utilitarian Value Intrinsic / Holistic Value Public interest in conservation IF serves human welfare Global / Universal public interest in conservation Assessment of value for each biodiversity component (concrete measurement tools) Comprehensive / Inclusive policies with egalitarian view on value of biodiversity Property viewed as essential means to avoid « tragedy of the commons » No cohesive ecocentric property theory

Anthropocentrism and Normative Discourse • Principle? • Environmental and nature protection issues should be simply reduced to questions of science, technology and rents in economic terms • Normative prescriptions should maximize the well-being of all humankind: focus on those issues valuable to human beings • General policy goals? • Public interest in conservation insofar as it serves human welfare (no universal interest) • Assessment of all specific values found within each component of biodiversity; through concrete tools: • Economic valuation of biodiversity, coupled with • Ecological valuation of biodiversity (emphasis on regulative functions…) • Private property viewed as essential means to avoid « tragedy of the commons »

Anthropocentrism and Normative Discourse • Examples? • List of endangered species that are the most important resources for humankind (whether on the basis of financial or sentimental values), • WWF list of species including dolphins and not sharks? • Environmental impact assessment obligations • Cost-benefit analysis • Creation of artifical habitats: • Either for the sole purpose of human enjoyment: small recreational parks that are counted as « green areas » in urban landscapes • Or for the protection of wilderness: still affirmation of human mastery over nature? • Grant of agricultural subsidies • Promotion of organic/biodynamic farming for food quality or landscape preservation purposes

Ecocentrism and Normative Discourse • Principle? • Nature is used as an external normative framework, independent from human valuation • Nature becomes a subject of rights since all sensible and insensible beings have inherent values: recognition of biotic rights (to nature and animals) • Translation in general policy goals? MORE RARELY DONE IN LITERATURE • Global / Universal public interest in conservation • Prohibit the reduction of natural richness and diversity except to satisfy vital needs • Duty to restore comes directly and uniquely from the damage caused • Comprehensive / Inclusive policies with egalitarian view on value of biodiversity (no component of higher value from the other) • Development of policies for « bioregions » • Emphasis on cross-species identification • No cohesive ecocentric property theory but rejects bilateralism since universal interest and general reduction policy (population and pressure)

Ecocentrism and Normative Discourse • Examples? • List of endangered species based simply on their numbers (IUCN Red List) • CBD article « common concern of mankind » / « common heritage » doctrine • CGIAR centers : Obligation to hold genetic material « in trust » for humanity • Neither an instrument nor a commodity? • Adoption, implementation and enforcement of strict precautionary principlebased environmental measures • Promotion of organic/biodynamic farming due to stewardship ideas within

Normative Actions: Anthropo- or Eco-? • • • UNESCO Biosphere reserves? National parks ? Zoos ? Ex situ gene collections ? Support Plant breeding programmes? …. .

Competing Values? What determines the content of normative prescriptions? • Relativism: no absolute truth transcending other existing value systems (numerous and valid) • Internal coherence (John Rawls : reflexive balance)? Ethical stance if competing values? • Anthropocentric : trade-off (economic) • Ecocentric : sacrifice Nature for humankind

STRUCTURE 1. Introducing Ethics 2. Valuing biological diversity 3. Enacting regulatory tools for conservation 4. Adjusting polarized value systems

4. Adjusting polarized value systems? • IS THERE ONE ABSOLUTE TRUTH? • A pragmatiscally humanist approach to biodiversity valuation: Moving beyond polarized value ethics systems • Middle way between anthropocentric welfarism and ecocentric mysticism?

The Need for a Hybrid value system? Anthropocentrism is a key concept to motivate the general public and policy makers to act for biodiversity • Anthropocentric values are best-suited to push for sound regulatory decisions, as they allow for • concrete evaluation of biodiversity benefits and budgeting of conservation costs • Internalization of externalities in public policy decisions • Nature conservation NGOs focus on the economic benefits of nature in their mission statements (Campagna and Fernández 2007; Butler and Acott 2007)

The Need for a Hybrid system? Ecocentrism is here to stay! • Biodiversity values are “incommensurable”, (priceless) not ordinary commodities sold on marketplace • Value claims so diverse that there can be no fixed degree of preference between them (protection of an in situ agrobiodiversity hot spot against invasive species) • Research results of people’s ‘visions of nature’ in Europe (DE GROOT et al. 2009); surveys conducted in France, the Netherlands and Germany in the framework of the EU (Interreg) project ‘Freude am Fluss’, • the old image of human Mastery over nature is massively rejected, • the far majority of the respondents strongly adhere to notions of Stewardship or even more ecocentric images of the human/nature relationship (value of nature is infinite, because without nature, we would not exist at all)

The Need for a Hybrid value system? • Holmes ROLSTON (1994) • « Values are intrinsic, instrumental and systemic and all three are intertwoven, no one with priority over the others in significance » • Millenium Ecosystems Assessment, Biodiversity Synthesis (2001) • “Human well-being is the central focus for the MA, but biodiversity and ecosystems also have intrinsic value. • A full assessment of the interactions between people and biodiversity requires a multiscale approach, as this better reflects the multiscale nature of decision -making”. • The Economics of Ecosystems and Biodiversity, TEEB (2010) • « In addition to economic valuation, other ways to analyze the importance of ecosystem services include livelihoods assessments, capabilities, opportunities and vulnerability assessments ; • Necessary for integrating dimensions of human well-being that cannot (or should not) be measured in terms of money, such as freedom of choice, human rights and intrinsic values » .

Food For Thought : Moving Beyond Polarized Ethics? ANTHROPOCENTRISM ECOCENTRISM Instrumental / Utilitarian Value Intrinsic Values depend on human beings Values exist independently ECO-ANTHROPOCENTRIC ETHICAL SYSTEM ? ? ? ECO-PRAGMATISM ? PLURALISM ? TOTAL ECONOMIC VALUE ?

Eco-Pragmatism • Pragmatism in Philosophy? C. I. LEWIS, Holmes ROLSTON • Valuing is merely an activity without fixed ends/objectives that guide all our actions: inter-related nature of all human values • Not understood in philosophy as in common language: not necessarily short-sighted or inherently anthropocentric since • Values can transcend human concerns (subjectivism not necessarily subject-centric) • Eco-Pragmatism in Environmental Ethics? Andrew LIGHT (1992), Daniel FARBER (1999) • Need to be free from bipolar extremism of environmental policy • « Walk away from both tree huggers and bean counters »

Total Economic Value • Ecosystem services (ES) have rapidly become the mainstream concept to express the benefits of nature (ecosystems, biodiversity) to society. • The concept is now used for many purposes, among which: • a basis to calculate the ‘Total Economic Value’ (TEV) of ecosystems in smaller or wider regions • End the « economic invisibility of nature » • How can TEV be seen as a hybrid? • Broader mindset than pure market valuation of goods (even though based on anthropocentric cost-benefit approach) Encompasses different sets of values: • Ecological benefits • Based on related value paradigm: importance attached by people to the environment; both as instrumental and intrinsic • Socio-cultural benefits • Economic benefits Room for ECOCENTRIC Considerations ? • Use (direct or indirect) • Non-use values: Option (protection for future use) or Existence (ethical reasons, bequest)

TEV: Shortcomings? HOWEVER • Ecosystem services are more based on bio-mass and bio-productivity than biodiversity (not enough ecocentric considerations? ) • Methodological problems: system boundaries, double-counting and omissions (Turner et al. , 2010) • Difficulties of ‘value transfer’, when local assessments are scaled up to higher levels or to different places (territorial conundrum) • Limitations of ‘willingness to pay’ and likewise statements in contingent valuation methods, hypothetical compensation projects, defensive expenditures and other methods of monetarisation (Bockstael et al. , 2000). • Against this background, economists have been developing less abstract, e. g. more qualitative, discourse based and ‘embedded’ methods of economic valuation of biodiversity (e. g. Chee, 2004; Kumar and Kumar, 2008; Spash 2008; see also the VALVE project of the EU). • Much of this state of the art is at present embedded in the European TEEB project (‘The Economics of Ecosystems and Biodiversity’)

What next? BIOMOT Project FP 7 “MOTivational strength of ecosystem services and alternative ways to express the value of BIOdiversity” 1. Starting point: Interrogation of economic valuation methods • Is the economic value of nature not much more than the value of a collection of services? • Do people value nature in quite different realms than current economic approaches elicit? • Could more embedded and contextual methods of economic valuation perform better in motivating people to act for nature? 2. Assessment of Biodiversity value in successful governance for biodiversity • Survey of successful governance actions (policies, directives, agreements, programmes, projects) across Europe • in order to analyse which (economic and non-economic) ways to express the value of biodiversity have been at work CPDR- BIOGOV Unit http: //biogov. uclouvain. be/index. html

Concluding Words: Aichi Biodiversity Targets (CBD Strategic Plan 2011 -2020) Which Ethical choices do these targets reflect in your opinion? • Strategic Goal A: Address the underlying causes of biodiversity loss by mainstreaming biodiversity across government and society • Target 1 : By 2020, at the latest, people are aware of the values of biodiversity and the steps they can take to conserve and use it sustainably. • Strategic Goal B: Reduce the direct pressures on biodiversity and promote sustainable use • Target 5 : By 2020, the rate of loss of all natural habitats, including forests, is at least halved and where feasible brought close to zero, and degradation and fragmentation is significantly reduced. • Target 7 : By 2020 areas under agriculture, aquaculture and forestry are managed sustainably, ensuring conservation of biodiversity.

Concluding Words: Aichi Biodiversity Targets (CBD Strategic Plan 2011 -2020) • Strategic Goal C: To improve the status of biodiversity by safeguarding ecosystems, species and genetic diversity • Target 11: By 2020, at least 17 per cent of terrestrial and inland water, and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes. • Strategic Goal D: Enhance the benefits to all from biodiversity and ecosystem services • Target 16: By 2015, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization is in force and operational, consistent with national legislation • Strategic Goal E: Enhance implementation through participatory planning, knowledge management and capacity building

Hoping that the presentation has given you food for thought as to the moral considerations lying behind our desire and willingness to protect biodiversity, and its translation into normative discourse Thank you for attention CPDR- BIOGOV Unit http: //biogov. uclouvain. be/index. html