Skyddet av biologisk mångfald vid jakt : en studie om rättens förhållande till komplexa och dynamiska ekosystem tillämpat på uttag av viltarter

Sammanfattning: Biological diversity, or the variety of genes, species and ecosystem, is fundamental to all life on Earth. The conservation of biodiversity is consequently recognized both in national and international law as one of the prerequisites for achieving a sustainable development. However, the decrease in biodiversity is continuing, at all levels. There may be several reasons for why the law has not been successful in preserving biodiversity. One hypothesis for the failures is the lack of consistency between ecological and legal criteria, in particular regarding the incorporation of legal criteria relating to the complex and dynamic characteristics of ecosystems. Biodiversity is ruled by the laws of nature and only humans can be ruled by legislation. The laws regulating human behaviour that in one or another way affects biodiversity, must therefore be developed with consideration to the rules of nature, if the goal is to be achieved. One activity with potential and factual effect on diversity is hunting. The purpose of this study is to analyze whether the legislation on hunting and management of wildlife populations is developed with respect to ecological criteria necessary for achieving the goal of conserving biodiversity. Both national and EC legislation on hunting and management of wildlife populations have been included in the analysis. The result of the analysis shows that there are considerable differences between legal and ecological criteria. The legislation is mainly concerned with the use and protection of single species. When limits for hunting are determined, criteria relating to the targeted species are generally used. However, even on the species-level there are inconsistencies between legal and ecological criteria. E.g. there is a lack of legally binding obligations to protect species during their breeding- and hibernation periods and to preserve genetic diversity within species. On the ecosystem-level the lack of criteria in consistency is even more profound. Legal obligations to preserve or to consider interspecies relations, ecosystem functions and other relationships between the species and the ecosystem are almost non-existing. A broader perspective is found in the Environmental Code with its general rules of consideration and the goal to preserve biodiversity. The Environmental Code therefore, in principle, has an important function in forcing decision making towards an increased ecosystem approach. However, as the Code lacks efficient instruments for control and enforcement related to hunting specifically, the Code has no essential impact on decision on hunting in practice. In addition, the analysis shows that there are considerable differences between national law and EC-law. Since EC-law is binding on its member states there are numerous situations where national hunting law must be changed. Since legal criteria in EC-law generally are more in consistence with ecological criteria a more efficient implementation of EC-law is motivated from a goal fulfillment perspective as well. There are several ways in which the law needs to be developed in order to achieve the goal to preserve biodiversity. The analysis in this licentiate thesis will serve as a starting point for a discussion on how to develop such instruments and legal systems.