Legal expert comes face to face with brown bear

Case

Legal expert comes face to face with brown bear

Return of large carnivores demands legal research

Which legal expert spends his work time in a sleeping bag under the night sky to watch wild bears? Researcher Arie Trouwborst did that in the Slovenian wilderness.

Trouwborst peering at large wild animals in the iMfolozi wilderness in South AfricaTrouwborst peering at large wild animals in the iMfolozi wilderness in South Africa

During our visit to the Faculty of Law at Tilburg University, Arie Trouwborst wears an outfit that perfectly matches the subject: a green corduroy jacket and walking boots with rubber chunky soles of the indestructible type… This tall legal expert who has added a Vidi grant to his list of achievements looks more like a natural scientist than a bookworm and that is more or less true as well. He actually wanted to become a biologist.

‘As a child I was captivated by the natural world but at school I struggled too much with the science subjects,’ recalls Trouwborst. ‘During my law degree I gleefully followed everything related to environmental law. I graduated in international law. My PhD was about the ‘Precautionary principle’ – in the case of uncertainty about the effects of people on the environment governments must act with extra caution.’

'Predator proof law'

WolfThe Canis lupus in his Slovenian habitat. Photo: Miha Krofel

Although Trouwborst had by then drifted far away from the profession of wildlife manager in Africa that he had dreamed of as a boy, with his legal background he could scarcely get closer. He does not try to hide the fact: the Vidi that he received in 2014 to carry out research into ‘carnivore-proof law in Europe’ – how do we ensure European legislation finds a balance between the interests of people and the protection of large carnivores? – is nothing less than the jackpot. Thanks to this funding he can work with his research group Ius Carnivoris on research that must lead to a desperately needed clarification and improved application of cross-border legislation to ensure that the growing spread of bears, jackals, lynxes, wolverines and wolves towards the west of the continent occurs responsibly. Acceptable for the human residents and honest for the animal residents. That is the challenge: legislation that keeps pace with dynamic biodiversity.

Many maps of Europe hang on Trouwborst’s office walls, coloured in according to the specific approach to carnivores in each country. There is still quite a bit of diversity in that. There are also maps with dots that show the sightings of a species. With the management of carnivores you must not look at national borders but at the boundaries of populations, says the researcher. ‘The wolf has already surprised both friends and foes with its ability to adapt. The wolf can establish its habitat anywhere it can find food and it is not shot. The same applies to the golden jackal, which was recently sighted on the Veluwe. If you had suggested that fifteen years ago you would have been laughed at. In the Dutch radio programme 'Vroege vogels' I predicted six months ago that the return of Canis aureus was merely a matter of time. Now I even no longer use the word 'never' with respect to the brown bear…’

Wolves know exactly what to do with the excess of fallow deer in the dunes near Zandvoort
- Arie Trouwborst

That explains the fieldwork – searching for Canis lupus and Lynx pardinus (Iberian lynx) in Spain (found!), and his nocturnal stay under the Slovenian stars, alone in his sleeping bag, to experience what it was like to meet Ursus arctos (the brown bear) face-to-face during its hunt. In that case the bear found him! With mixed feelings Trouwborst recalls the encounter. ‘This bear on its established route suddenly encounters the outline of an unknown object. That was me lying on the ground protected only by my sleeping bag and with a heart rate of 200 beats per minute. I heard him sniffing around and emitting his typical throat sound that indicates anxiety or confusion: ‘woofing’ in bear jargon. Fortunately, after a decision-making process that seemed to take an eternity, he eventually decided to turn around. Then the thought: “what on earth am I doing here?” did cross my mind’.

Western people are no longer used to living together with large carnivores. The extermination of these animals in the past put an end to munched up lambs, devoured chickens and other economic damage, let alone the guileless walker or hawker who ended his days in the jaws of a hungry beast. Nature, however, is persistent. In search of food and a 'safe living environment' wild carnivores have once again been spotted in recent decades at places where it was thought they had become extinct. This specifically concerns the brown bear, the wolf, two species of lynx, the jackal and the wolverine.

‘Favourable conservation status’

This ‘carnivore comeback’ is linked to European legislation. In particular, in the Bern Convention (Convention on the Conservation of European Wildlife and Natural Habitats) from 1979 from the Council of Europe, and in the EU Habitat Directive from 1992, it has been established that governments are obliged to give such large carnivores space within their national boundaries and to bring them into a ‘favourable conservation status’. Subsequently it is for each country to decide to what extent they allow the population to grow above that minimum required. According to experts the return of these animals would positively contribute to the biological balance in nature, also in the Netherlands. ‘Let's be honest,’ says Trouwborst with a somewhat sardonic grin, ‘a pack of wolves knows exactly what to do with an excess of fallow deer in the dunes near Zandvoort'. 'We don't have to worry about that. And for people the magic word is co-existence. Sometimes you hear people complaining about the wild boar on the Veluwe and geese in the meadows, but they simply belong there. That is also possible with the wolf.’

Did you know? The wolf never disappeared from Italy and from that country it re-entered France.

With the first reports of the return of carnivores to places where they were not expected, the reactions are still positive. Wow, a wolf! But as soon as the first photos of lambs torn apart appear on the front pages of newspapers a different attitude suddenly arises. As a wildlife conservation law specialist (‘please note: I am a law researcher and not an environmental activist!’) Trouwborst wonders: how do we hold onto this European success story? ‘Sharp debates are being held, for example in France and Sweden. In effect you can see the return of the centuries-old conflict between townspeople and rural folk. For rural folk animals are a symbol of meddling from higher up: from the capital, or from Brussels (EU) or Strasbourg (Council of Europe). The return of the wolf in Germany has proceeded in an orderly manner and the wolf has also returned to France from Italy, where it had never been exterminated, despite protests from sheep farmers. However in Norway and Switzerland the wolf has not managed to return. Why is that? That is related to the Habitat directive: this does apply in Germany and France but not in Norway and Switzerland. So these European rules are working. Now the challenge is to ensure that they do not become a victim of their own current success. And that is exactly why we are carrying out this research.’

Dutch approach is bearing fruit 

LynxA lynx on the move, also in Slovenia. Photo: Miha Krofel

The Netherlands is the ultimate test case for the 'renewed acquaintance' between wolves and people, according to Trouwborst. To what extent can the wolf adapt and can people do that as well? The proactive approach that is applied in the Netherlands is in any case unique and it is bearing fruit. For example, two years ago all stakeholders were brought together under the auspices of the government to produce an action plan based on possible scenarios with respect to Canis lupus. Such a 'wolf plan' is easier to realise before the wolf actually arrives. Trouwborst cum suis have assumed responsibility for the legal aspects of the plan.

The Large Carnivore Initiative for Europe that Arie Trouwborst is a member of – as the only legal expert in a contingent of biologists – is an expertise group on national and international policy with respect to large carnivores. They are considering interesting issues such as the amazing northern and western expansion of the golden jackal, which has no history whatsoever in these regions. Since time immemorial it 'belonged' to the Balkans and for reasons as yet unknown to biologists it is increasingly foraying into our parts. How do you deal with such an unexpected development? Also in Eastern Europe a lot could be gained from a better implementation of the international rules. For example, by preventing new dams from being built in the main territory of the Balkan lynx (a threatened lynx subspecies). And how do you combine trophy hunting of bears with a good protection of them? To arrange that properly Trouwborst was recently in Bosnia to help write a bear management plan.

Legal challenge

A new arrival to the Netherlands: the golden jackal. Photo: Miha Krofel

Also interesting: the new European border fences not only keep out migrants but unintentionally bears, wolves and lynxes as well. With his Ius Carnivoris colleagues Floor Fleurke and Jennifer Dubrulle, Trouwborst is now examining this problem from a legal perspective.

And what about an interesting legal challenge like the hybrid, for example the frequently occurring cross between a wolf and a dog? What is the status of such an animal? Biologically, it is an undesirable reproductive form due to dilution of the species. But from a legal viewpoint it is even more complex: is this a protected wolf or just an outlawed dog? Trouwborst: ‘This is a beautiful example of navigating through a legal minefield. On the one hand you want to persuade the government to track down the wolf-dog hybrids and remove these from the wild. On the other hand you do not want to give a free hand to shooting hybrids because that would lead to a shooting gallery: how must a hunter tell the difference between a hybrid and a real wolf that has a protected status? And the trigger-happy farmer who is upset about his dead lambs can easily ignore his doubts about a 'bastard' or a 'real' wolf. Before you know it you will have a problem in the criminal courts: if for every wolf poacher the public prosecutor must demonstrate that it concerned a one hundred percent pure wolf then it will be impossible to imprison any poachers. On behalf of the Council of Europe in Strasbourg I recently published a report and a draft Recommendation to properly deal with this issue. That Recommendation has now been adopted, which means that European guidelines now exist for an effective and uniform approach to the hybrids problem. Such a dossier is highly satisfying: it is academically interesting and, if I may put it so boldly, a textbook example of the valorisation of scientific research.’

A drawing of a wolf hangs on the door with beneath it the text: Wolves don’t lose sleep over the opinion of sheep.