People own things, like cars, houses,
mobile phones. But some things cannot be owned. Does anyone own the air we
breath or the waters of the sea? Or can anyone own a species? Does the
orangutan, for example, belong to Indonesia or its government?
This is not an irrelevant question.
Ownership entitles one to management rights. Because I paid for my car, I
legally own it, I can drive it, sell it, fix it when it's broken, or pretty
much do anything I like.
So if someone would own a species it
would give that person or entity the right to do pretty much anything it, he or
she would like, including sending the poor species on a fast track to
extinction, or making sure it doesn't go extinct instead.
Now, I am by no means a legal expert, so
what follows here might be largely nonsensical. But I would like to give it a
shot, and try to understand what is at play regarding legal ownership of
species.
I will start with the Indonesian
Constitution, which states that “the land, the waters and natural resources
within shall be under the powers of the State.” To me “under the powers”
doesn't necessarily translate into ownership. It is more akin to having
management authority. So, as far as I can see, no legal ownership there. The
Indonesian state does not own the orangutan.
Could orangutans be patented? There is so
much potential money in bio-prospecting, where a particular species could have
important health benefits or other potential. But as far as I am aware,
products of nature cannot be patented. You can patent a genetically engineered
mouse that was created in your lab, but you cannot patent the mouse running
wild in that same laboratory. So, orangutans cannot be patented.
Orangutans can be traded though, with
money presumably going into government coffers. Like China, which
rents out its pandas to international zoos at a rate of $1 million per
panda year, the Indonesian government could rent out orangutans. Still as far
as I know, China owns each and every single captive panda, but not the ones who
are living in their natural habitat.
Finally, if I lease a timber or mining
concession from the government, I become the legal owner of the timber or
mineral resource, right? By analogy then, if I lease a forest area or if I am
the private owner and it has orangutans in it, wouldn't I then own the
orangutans as well? I am pretty sure the latter is not the case, but why can
someone own, harvest and sell trees or coal, but not the wildlife?
I guess the key issue is that species like
orangutans are legally protected. The basic conservation law (No. 5 of 1990)
says that no person is allowed to possess a protected species. So you could
have the right to use a forest, take out and sell the trees, but not the
protected wildlife in your forest.
Unless I am missing something, the
conclusion seems to be that no one legally owns the orangutan, or other protected
species – not Indonesia, not the Indonesian government, not the Indonesian
people.
There are a few reasons why I think this
question of legal species ownership is important.
Firstly, the public sentiment indicates
that there is a sense of national ownership of certain species. For example,
there has been strong public demand to return orangutans housed in overseas
zoos to Indonesia, because they “belong” to this country: These are “our”
orangutans and “we want them back."
That seems strange to me. Once they were
sold overseas, I would have guessed they became Thai or Korean orangutans. But
the public and also government seems to think or feel differently.
And, in a way, orangutans are indeed
“owned” by Indonesia, and of course Malaysia, the only other country where the
species occurs in the wild. If, for example, the Indonesian government would
decide that they had enough of international demands to provide better
protection for those red apes, and no longer consider them legally protected,
there is little the international community could do about it.
We could all jump up and down in anger and
threaten the Indonesian government with all sorts of action, but the government
could happily ignore us. Of course, there are international treaties such as
the Convention on Biological Diversity, which is legally binding, and to which
Indonesia is a signatory. But the reality is that the international community
has few means to make Indonesia change its species protection policies and
management.
The above example is not entirely
hypothetical. Indonesia has not delisted orangutans and they are still legally
protected, but in reality that doesn't mean much. Our studies show that every
year, a few thousand orangutans are killed, but the laws against those illegal
actions are not enforced. And every year, some 3,000 square kilometers of
orangutan habitat is converted to state-condoned non-forest use, in effect
killing the “protected” orangutans that live there.
To put it this way, if I was the legal
owner of orangutans, I would certainly release the government authorities of
their responsibility for managing the species, and find a more competent
managing authority. But I can't because I don't own the orangutan, and have no
legal means to make the government more accountable for its failures.
The point of all this is that a common
good like a species is not owned by anyone, and we depend entirely on the good
will of the legal guardian, generally the government, to look after these
common goods. And there is nothing we can do if that guardian is ineffective.
All this doesn't seem right. Orangutans
did not choose to come and live in Indonesia. In fact, their ancestors were
here some 2.5 million years before the first modern humans arrived.
Logically, orangutans should be a public
good over which the whole world has some say. More importantly, orangutans
should be managed competently and caringly. As the orangutan's legal guardian,
the Indonesian government should step up its species management. And if it
is not up to it, it should reassign protected species management to
more competent parties.
Erik Meijaard coordinates the Borneo
Futures network
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