The Habitats Directive and Bern Convention: Synergy and Dysfunction in Public International and EU Law

Abstract

The Bern Convention of the Council of Europe and the European Union’s Habitats Directive are the primary legal instruments driving species protection in Europe. The Habitats Directive implements the Bern Convention in the EU. While the Habitats Directive has stronger enforcement mechanisms than the Bern Convention, it covers a smaller geographical region. Through cooperation, each has used the other’s strength to compensate for its weaknesses. This dynamic interplay between these two legal regimes has most often been beneficial to the pursuit of both instruments’ conservation goals, particularly with regards to enforcement, funding, and capacity building. As the EU has grown in size and competence, however, it now essentially has the ability to direct the application of the Bern Convention. This outsized influence presents challenges to the institutional synergy between the two instruments and the continued functioning of the Bern Convention as an independent legal regime with policy preferences separate from those of the EU.

Keywords: Council of Europe, ECtHR, Convention on Human Rights, European Union, species protection