The law, ecosystem services and ecosystem functions: An in-depth overview of coverage and interrelation

Abstract

Ecosystem services have been particularly since the Millennium Ecosystem Assessment in 2005 a broadly analysed issue. This discussion has been widely led by scholars from environmental and related economic sciences, while social scientists have paid less attention and legal scholars have hardly entered a deeper controversy about the topic.This paper addresses the following questions1.in how far law in general already currently covers – perhaps not explicitly - ecosystem services,2.in how far law goes beyond the pure coverage of these ‘services’ and additionally covers functions of ecosystems which usually are not already considered ‘services’,3.which consequences arise from this differentiated coverage by law, and4.which services/functions of ecosystems the law and even governance in the widest sense are not able to cover at all or in particular situations.The whole analysis is implemented by an in-depth review of existing academic literature as well as by means of theoretical and practical cases which support the arguments brought forward.First, it is shown by examples that law covers since millennia the essence of all the main different ecosystem services but not necessarily by using the term ecosystem services.Secondly, several cases describe how law addresses functions of ecosystems which often are not considered (anymore) by humans as ecosystem services, such as river floods, springtides and volcano eruptions.Thirdly, among the consequences found are conflicting interests between more ecocentric related functions and more anthropocentric related services of ecosystems. Law has played in the past a pivotal role in fostering these ecosystem services. With regard to ecosystem functions the role of law has during the past been a less enabling, but rather a restricting one. However, some recent changes of this situation, e.g. in flood protection or wilderness conservation are shown.Fourthly, the paper indicates e.g. natural genetic modifications and fertilizing through volcano eruption as services/functions of ecosystems which the law and even governance in the widest sense is not able to cover at all in the sense of enabling, but only – if at all - can cover in a reactive way.The results of this contribution provide a basic assessment of the relationship between law and the functions as well as the services of ecosystems. In this way, the findings critically reflect potentials and pitfalls to be globally considered when intending to apply law on these features.