Poacher pays? Judges' liability decisions in a mock trial about environmental harm caused by illegal wildlife trade
2022
Fajrini, Rika | Nichols, Rebecca M. | Phelps, Jacob
Conservation litigation applies environmental liability law to biodiversity conservation contexts—holding parties who harm biodiversity responsible for providing remedies such as restoration, compensation, apologies and investments into education and cultural activities. Many countries have enabling legislation, but these types of lawsuits are rare in most countries and have been infrequently used to protect biodiversity from drivers such as illegal wildlife trade. Yet, these types of cases could be strategically used to provide remedies for cases of egregious harm and help catalyze social change through the power of judicial decisions. The viability of future cases, however, relies heavily on the judges and juries who adjudicate cases. Rather than wait potentially decades for test cases to emerge to help evaluate the success of this strategy, we conducted mock trials and post-trial interviews with Indonesian judges (N = 32), a population that is rarely explored in conservation science. We presented them with a hypothetical civil lawsuit in a case of illegal tiger trade, which sought to hold the defendant liable for providing 11 different remedies to address the harm purportedly caused by their actions. The results show that judges were very amenable to providing remedies in this type of civil lawsuit; for eight of the 11 claims, over 60% of the respondents indicated each claim would be likely to be accepted. The results also highlighted six key themes important in judicial decision-making, which provide insights for practitioners developing future lawsuits. The results suggest a favorable setting for testing real-world application of liability laws to remedy biodiversity harm, which may become an important part of future environmental governance.
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