II. The limits of the traditional legal approaches to plants

Traditionally, the law has adopted two broad approaches to plants. First, measures are put in place to facilitate their exploitation for the benefit of humans. This exploitation may be direct, such as through consumption as food, or indirect, for example to enhance urban environments. In his appraisal of the challenges to urban biodiversity, Murphy highlights some of the advantages of employing plants in this way:

Using plants for purposes of amenity such as those described by Murphy is relatively uncontroversial, although criticisms can be made of the ecological value of using tropical rather than native species in urban green spaces. They are often unable to perform the self-renewing functions of native species and are therefore not only ecologically inadequate, but also entail greater maintenance costs (Murphy, Reference Murphy and Wilson1988, p. 73). In comparison, the cultivation and use of genetically modified organisms (GMOs) have proven extremely contentious in some jurisdictions, notably the EU, and the way in which this debate has been framed in the past frustrated any possibility of developing a legal framework that recognises the significant influence that plants have in agricultural contexts. This frustration stemmed from the European Commission's understanding of coexistence between different agricultural practices, which curtailed the autonomy apparently afforded to Member States in European GMO legislation,Footnote ² although recent legislative developments in the EU suggest the balance has been redressed in the Member States’ favour. Previous Commission publications on the issue suggested that they considered GMO cultivation to be a wholly economic issue and this had serious implications ‘since it implie[d] that to the extent that presence of GM material has no market impact, then it raise[d] no coexistence issues’ (Lee, Reference Lee2008, p. 199). This was clearly not a view shared by some Member States. Austria, for example, challenged the Commission's refusal to authorise a blanket ban on the cultivation of GMO crops in Land Oberösterreich,Footnote ³ a region in which there is a strong organic agricultural industry. The Court of Justice held that Austria had failed to comply with the conditions in Article 114(5) of the Treaty on the Functioning of the European Union.Footnote ⁴ Relevant here is the requirement that the problem the Member State is trying to address be ‘specific’ to them. Although the Court emphasised that ‘specific’ did not mean unique,Footnote ⁵ it was held that the nature of Austria's small-scale organic farming was not sufficient to meet this criterion. One of the reasons for this finding was Austria's failure to provide scientific evidence pertaining to the presence of ‘unusual ecosystems’ in the region.Footnote ⁶ This may be considered a quantitative standard, in that objective rather than subjective criteria can be used to assess whether an ecosystem is ‘unusual’, such as its comparative rarity or the number of endemic or rare species it contains. No guidance on this issue is provided by the European Food Safety Authority opinion that was requested by the Commission on the justifications put forward by Austria for the restrictions on GMO cultivation.Footnote ⁷ If a broader spectrum of qualitative concerns were permitted,

The ways in which these ‘rural ways of life’ have evolved illustrate the influence plants that can have on the nature of a society. As I explore further below, the choice of a particular crop plant, whether organic or genetically modified, will determine an agricultural community's (be this a single farming family or a wider community) annual calendar. Returning to the discussion of actor-network theory above, it is clear that, in this context, plants can be powerful members of agricultural networks. They not only respond to the selected agricultural methods, but also force a response from humans, for example by requiring that they be harvested at a certain time of year. Similarities can also be seen with Callon's (Reference Callon and Law1986) illustration of how a natural actor may support or weaken other associations within a network. In the same way as the scientists’ relationship with their peers and the scallop farmers depended on the scallops behaving in a certain way, the relationship between a crop farmer and, for example, his customers will be influenced by the ‘behaviour’ of the crop. If the crop is successful, the farmer will enjoy positive relations and the promise of future contracts. On the other hand, if it fails and the farmer is unable to deliver on what was promised, his relationship with his customers will be undermined.

More recent legislative responses to the issue of GMO cultivation indicate that the EU is now more sympathetic to the concerns raised by Austria. A new Article 26(b) in Directive 2001/18/EC permits a Member State, subject to the requirements of compliance with EU law, proportionality and non-discrimination, to prohibit the cultivation of GM crops in all or part of its territory on grounds of, inter alia, environmental objectives, socio-economic impacts and national agricultural policy.Footnote ⁸ Consideration is also being given to similar rules in relation to GM food and feed.Footnote ⁹ These must be seen as positive developments, as they facilitate the protection of the ‘rural ways of life’ referred to by Lee (Reference Lee2008). Further, although falling short of an explicit provision recognising the role plants play in agricultural communities and practices, they create space in which this notion could be seen as a legitimate consideration within the GMO debate.

Alongside regimes that facilitate the exploitation of plants, the law has seen the creation of various regimes, at national, regional and global levels, designed to mitigate the resulting detrimental impacts. As with biodiversity and nature conservation more generally, measures to protect plants primarily take the form of the listing of species and the designation of protected areas. Taking the IUCN Red List as an example, it is clear that using listing as the basis for determining conservation action is not without issue. Of particular concern is that the listing of species is being increasingly challenged where that species is economically or politically important. In other words, scientific judgment is being questioned on the basis of socio-economic interests. There are also practical problems with the listing process, arising from the lack of both resources and baseline and current data relating to the exact status of any given species (Mace et al., Reference Mace, Collar, Gaston, Hilton-Taylor, Akçakaya, Leader-Williams, Milner-Gulland and Stuart2008). Further, even if the categorisation was an accurate reflection of a species’ status at the time of the initial inscription, there are no guarantees that it still is. In 2014, it was suggested that 17 per cent of classifications on the Red List were out of date, but insufficient resources mean a comprehensive programme of reassessment is unlikely (Rondinini et al., Reference Rondinini, Di Marco, Visconti, Butchart and Boitani2014). It should be noted, however, that Mace et al. conclude that the IUCN system is ‘sufficient for its purpose’ and any amendments to the way it operates ‘could undermine its many longer-term benefits’ (Reference Mace, Collar, Gaston, Hilton-Taylor, Akçakaya, Leader-Williams, Milner-Gulland and Stuart2008, p. 1440).

Designating protected areas has been central to national and international conservation efforts ever since conservation entered the conscience of the colonial elite in the eighteenth and nineteenth centuries (Adams, Reference Adams2004). They have since been mandated in most global and regional conservation instruments.Footnote ¹⁰ Whilst this concept invokes images of pristine habitats safeguarded against human intrusion, the reality is that the law facilitates, if not actively encourages, their exploitation through generous interpretations of derogation provisions and exceptions (Krämer, Reference Krämer2009). Further, the very rationales behind such measures are often anthropocentric in nature, regardless of any statements in the instrument that suggest otherwise. To give just one example, the 1982 World Charter for NatureFootnote ¹¹ states that ‘every form of life is unique, warranting respect regardless of its worth to man’. However, the subsequent provisions constitute a framework founded on anthropocentric understandings of the value of nature and support an agenda focused on perpetuating continued use rather than genuine protection (Harrop, Reference Harrop, Leader-Williams, Adams and Smith2010).

There is no doubt that protected areas have achieved notable successes in terms of protecting endangered species. The gorilla populations of central Africa would not have survived decades of civil warfare without the three national parks established to protect them (Adams, Reference Adams2004, pp. 4–5). However, concerns have been raised over the efficacy of protected areas. First, they give the impression that conservation is a land use, no different from the siting of a new development. Their creation can also be falsely equated with meeting nature's needs, frustrating attempts to adopt a more cross-cutting holistic approach to conservation. Finally, protected sites are often isolated from the surrounding area, with little attention paid to the conservation needs of identical habitat that is simply the wrong side of an arbitrary boundary. These boundaries are often determined by the political convenience of the site or the financial resources of a conservation organisation rather than ecological considerations (Adams, Reference Adams2003, p. 116). This final point relates to the theory of island biogeography (MacArthur and Wilson, Reference Macarthur and Wilson1967), which forms the basis for criticising protected areas on ecological grounds. In short, it is argued that isolated patches of fragmented habitat, equated to remote islands, are incapable of supporting viable populations of species. Legislative responses to this such as Natura 2000 – the network of protected areas in the EU connected by ‘green corridors’ established by the Habitats DirectiveFootnote ¹² – are sound in theory, but poor implementation has undermined their effectiveness (De Sadeleer, Reference de Sadeleer and Macrory2006, p. 364). Further, there is evidence to suggest that, in some cases, the protected areas are too small to protect the target species (Boyd et al., Reference Boyd, Brooks, Butchart, Edgar, Da Fonseca, Hawkins, Hoffman, Sechrest, Stuart and Van Dijk2008), or do not cover those areas most in need of protection (Mendoza-Fernández et al., Reference Mendoza-Fernández, Pérez-García, Martínez-Hernández, Medina-Cazorla, Garrido-Becerra, Merlo Calvente, Guirado Romero and Mota2014). An alternative, and in my view more ecologically sound, approach, as it relies on more than just corridors to link protected sites, are biosphere reserves such as those advocated by Batisse (Reference Batisse1982). These comprise a core area that enjoys strict protection, but is surrounded by various transition zones that allow for gradually increasing anthropogenic interference and more intrusive land use. The idea is to incorporate rather than isolate protected areas into the wider environment.

Given these weaknesses in both listing and protected areas, it should come as no surprise that the law fails in terms of protecting plants. A brief overview of the international community's progress towards achieving the targets of the Convention on Biological Diversity'sFootnote ¹³ Updated Global Strategy for Plant Conservation (GSPC)Footnote ¹⁴ confirms this. A broad approach to plant conservation is taken by the GSPC, with targets including, inter alia, the gathering of scientific data concerning the conservation status of all plant species, habitat and species approaches to conservation, and ensuring the sustainable exploitation of plants and public engagement. Progress towards achieving these targets is mixed, with those that require multiple stakeholder involvement proving harder to accomplish than those that can be achieved through unilateral action by interested parties. This has been seen in the UK, where initial ‘gentleman's agreements’ to take action to implement the GSPC have not been followed through (Radford, Reference Radford2011). Of particular concern is the lack of progress towards targets relating to the in situ and ex situ conservation of plants, set out under Objective II of the GSPC. With regard to in situ measures, studies have shown that many of the most important areas of plant diversity are not included in protected area networks (Larsen et al., Reference Larsen, Turner and Mittermeier2015). Research on the ex situ conservation of plants leads to similar conclusions. For example, it is estimated that only half of the endemic plant species of Greece are represented in ex situ conservation activities. Further, there is no viable seed available for reintroduction programmes for the majority of Greek species stored in seedbanks and other botanical institutions (Krigas et al., Reference Krigas, Menteli and Vokou2014). This is in some ways more concerning than the failure to ensure the botanical representativeness of protected areas. The assumption behind ex situ conservation is that the genetic material being stored constitutes a resource that can be used to resurrect a species should it become necessary. If, as in the case of Greek flora, this is not true, then urgent action must be taken to remedy this to ensure that any future reintroduction programmes are successful.

The notable flaws in listing and designation, both generally and in the specific context of plant conservation, raise the question of why policy-makers, at international and national levels, persist in pursuing them in legal instruments. Adams attributes this to ‘path dependence’. He argues that certain concepts, such as protected areas, become ‘institutionalized as part of “received wisdom”, becoming culturally, institutionally and politically embedded in the way key actors, especially technical experts within government and non-governmental organizations, think’ and therefore frame the way in which problems, such as biodiversity loss, are approached (Adams, Reference Adams, Leader-Williams, Adams and Smith2010, p. 297). This is not per se a bad thing and, in other contexts, the institutionalisation of certain ways of thinking is a crucial step in developing a more ecologically sympathetic body of environmental law. Cultural theories of environmental assessment suggest that systematically requiring those involved in environmental assessment procedures to consider the environmental impacts of development will eventually lead to those parties automatically taking environmental considerations into account, rather than only doing so because of a legal obligation (Bartlett, Reference Bartlett, Paehlke and Torgerson2005). There is also a political dimension to this dogmatic support of designation. A decision-maker may have very valid reasons for removing a site's protective status; for example, an alternative site with greater ecological representativeness may have been identified, or a better management scheme that allows for a local population to extract certain key resources is put forward. However, in doing so, he risks the political humiliation of performing a U-turn on policy, or condemnation for apparently abandoning a site that was previously considered worthy of protection. The point remains, however, that both listing and designation are flawed in various respects. Further, it is difficult to reconcile the continued reliance on these rather narrow mechanisms with the increasing and varied range of traditional and modern uses to which plants are being put. Studies have recently been published into the cultural importance of wild edible plants on Ulleung Island, South Korea (Ong et al., Reference Ong, Chung, Jeong, Kim, Shin and Lee2015), traditional medicinal plants used by the Khattak tribe in Pakistan (Rehman et al., Reference Rehman, Mashwani, Khan, Ullah and Chaudhary2015) and medicinal attributes of the coconut tree that modern science are beginning to take advantage of (Roopan and Elango, Reference Roopan and Elango2015). The comparatively limited repertoire of the law is the antithesis of more experientially developed relationships with plants being incorporated into legal processes. It is not impossible to conceive of how this might be achieved. Morrow highlights the merits of quotidian epistemology in this regard:

The failure of law to appreciate the complex relationships between society and nature is by no means a phenomenon unique to plants. Holder observes a similar situation in relation to landscapes, where the law has demonstrated a similar lack of vision. It is argued that, by adopting a system based on counting the number of species and features to determine whether a hedgerow qualifies as ‘important’ for the purposes of the Hedgerows Regulations 1997,Footnote ¹⁵ the law ‘fails to capture the social and cultural importance of hedgerows for particular localities’ (Holder, Reference Holder, Holder and McGillivray1999, p. 135). Holder goes on to argue ‘that this approach typifies the narrowness of legal definitions and conceptions of landscape, particularly when compared with non-legal meanings and understandings which emphasise the relationships between people, nature and landscape’ (Reference Holder, Holder and McGillivray1999, p. 135). Certainly, the same criticisms could be levied against the EU's approach to GMOs discussed above. Neither is it only the law that fails to engage with these deeper questions of relationships between humanity and the natural world, although it is the law that is my focus here. Similar charges have been made against landscape design and research, with Riley arguing that:

Reiterating an earlier point made in relation to actor-network theory, plants too are capable of responding to their landscape. Some low-growing plants in forests, for example, send shoots to ‘climb’ up taller species in order to access sunlight that is blocked by the canopy.

It is not just in relation to specific components of the natural world – be these individual species or wider landscapes – in which a mutually reinforcing relationship between nature and society has been identified. Street (Reference Street, Holder and Harrison2003) argues that biodiversity itself cannot be accurately accounted for without appreciating its impacts on the development of social processes and behaviours. The ways in which the value of nature can be expressed and measured has produced a substantial body of scholarship, which falls outside the scope of the present discussion. One key point made by Brook (Reference Brook2006) warrants examination however and that is that the value of the natural world is relational – that is, the same entity will mean different things to different people. This is reiterated by Street (Reference Street, Holder and Harrison2003), who suggests an inability to account for this is one of the principal failings of international environmental law, and particularly the Convention on Biological Diversity. The cause of this, he suggests, is that the legal structures of the Convention fail to differentiate within communities, and mistakenly assume that, because different social groupings occupy the same place, they also occupy the same space – that is, they share the same cultural histories and contemporary knowledge frameworks as their neighbours (Street, Reference Street, Holder and Harrison2003, p. 326). To illustrate:

The implications of this are that, even when the law, in this case the Biodiversity Convention, attempts to adopt a more nuanced approach to the relationship between nature and a given society, the broad-brush approach it has adopted by limiting its criteria for distinguishing between communities to location alone is flawed. Not only are the law's conceptions of nature too narrow, but so too are its understandings of community. This calls into question the efficacy of the mainstream approaches to conservation not because of incomplete science, insufficient resources or poor implementation, but because of a more fundamental misunderstanding of how the relationships between people and nature, for the purposes of this paper plants, have influenced the evolution of society. This misunderstanding, I suggest, is a consequence of failing to recognise that plants participate in and impact on the development of a society.

III. Integrating nature and society

Ecocentric advocates have long argued that the ecological crises we face cannot be resolved without overcoming human–nature divides. In Reference Stone1972, Stone famously asked ‘should trees having standing?’ and argued that natural entities, through the designation of an appropriate guardian to represent their interests per se, should be granted legal rights that, inter alia, give them standing in a court of law. More radically, deep ecologists call for a ‘return to wilderness’. The two fundamental norms of deep ecology, self-realisation and biocentric equality, speak to the need for humanity to uncouple itself from the hedonistic and materialistic motivations of modern society and to recognise that all life on Earth has the equal right to exist (Devall and Sessions, Reference Devall and Sessions2007, pp. 66–69). The idea of expanding our understanding of ‘community’ may also be found in the work of Aldo Leopold, whose land ethic ‘enlarges the boundaries of the community to include soils, water, plants, and animals’ (Reference Leopold1968, p. 204). He continues: ‘… a land ethic changes the role of Homo sapiens from conqueror of the land-community to plain member and citizen of it. It implies respect for his fellow-members, and also respect for the community as such’ (Leopold, Reference Leopold1968, p. 204).

This respect can take different forms. Certainly, granting nature rights akin to those enjoyed by humans, as Stone proposes, would be one way to show nature respect. Equally, however, I suggest that respect may be shown to, as Leopold describes them, our fellow members of Earth's community by utilising them in ecologically appropriate ways, as Murphy (Reference Murphy and Wilson1988) advises in relation to urban planting schemes. Just as we should show respect to another human by not giving him a responsibility that he is fundamentally incapable of fulfilling, so should we not impose on nature a task that is beyond its ecological capabilities. Such an argument applies equally to individual cases of urban planting schemes as it does to wider issues such as the perpetual emission of dangerous levels of greenhouse gases.

The broad notion of ‘community’ envisaged by Leopold is in contrast to the narrow, more human-focused versions of actor-network theory enunciated by sociologists such Hacking (Reference Hacking2000). The critique of his position that humans should be considered as distinct from nature because they possess a capacity to respond, outlined above, is that it fails to recognise that plants too are capable of responding to other human and non-human actors in a given network. That nature has a capacity for response is one of the core tenets of Lovelock's Gaia hypothesis, and here we can see that the idea of assigning certain roles to natural entities is not a particularly novel one. Drawing inspiration from the field of cybernetics, namely the science of communications and self-regulation (Wiener, Reference Wiener2013), Lovelock argues that all life on Earth (or Gaia) constitutes ‘a single living entity, capable of manipulating the Earth's atmosphere to suit its overall needs’ (Reference Lovelock2009, p. 9). Like humans, the Earth has vital organs and its capacity of self-regulation, and to support human life, depends on the extent to which we affect and degrade these key planetary regions. The oceans, for example, play an important role in storing carbon dioxide and releasing nutrients back into the atmosphere. It is persuasively argued by Lovelock that ‘Until we know much more about the Earth and the role of these regions, vital or otherwise, we had much better set them outside the limits of exploitation’ (Reference Lovelock2009, p. 122).

Valid criticisms may be levied against each of these ecocentric theories. In relation to deep ecology, for example, Plumwood (Reference Plumwood1993) has highlighted the apparent contradiction in relying on individual (masculine) experiences of the wilderness to reconnect human society as a whole with nature. What I am proposing in this paper, however, is not the wholesale adoption of a new ecocentric social order. Instead, it may be characterised as a reorientation of perceptions recognising that the continuing evolution human life and communities has in part been by influenced by our interactions with plants. This may or may not lead to greater discussion of the desirability and practicality of more significant ecocentric reform, but to the extent that it could lead to greater awareness of the nexus between human society and nature, the recognition that plants participate, in different ways, in both social processes and development may be considered a worthy end in itself. It offers an opportunity to break the path dependence apparent in environmental law that leaves us ill-equipped to address modern ecological crises (Adams, Reference Adams, Leader-Williams, Adams and Smith2010). Breaking this dependence is not easy and requires more than merely presenting data that challenge the efficacy of established policy and practice (Roe, Reference Roe1991). What is instead required is ‘a better story’, namely a new environmental narrative that is more appealing (politically, socially, scientifically) than the current path (Roe, Reference Roe1991, p. 290). Compared with other disciplines, the law appears less able to facilitate the adoption of a new narrative. In ecology, for example, Mace (Reference Mace2014) tracks a gradual paradigm shift from a ‘nature for itself’ framework, in which the emphasis was on preserving supposedly untouched areas of wilderness, to a ‘people and nature’ narrative, where there is much greater focus on enabling and protecting the interactions within and between nature and humans. This new narrative has enhancing resilience and adaptive capabilities as its goals, rather than preserving a status quo. There are a number of possible reasons why the law is less able to undergo a similar paradigm shift. As suggested above, there may be a political cost to abandoning a policy that was previously considered sound and, at the international level, the procedural difficulties in amending or renegotiating multilateral environmental agreements are significant obstacles. Nevertheless, there is evidence to suggest that a new narrative, grounded in the ecological and cultural value of plants, is beginning to emerge in environmental law and policy. This new narrative is, at least in part, one that is based on the influence plants have on society.

IV. The contributory role of plants in meeting social aims

There is a contradiction inherent in legal policy where plants are called upon to address human-caused environmental and ecological crises, but not afforded the protection necessary to enable them to effectively do so. This is clearly demonstrated in the context of climate change. A concerted effort has been made through the UN Programme on Reducing Deforestation and Forest Degradation (REDD) and the broader REDD+ programme to reverse economic incentives so that forests are worth more to developing countries if they are preserved rather than cut down. This has met with some success and, through REDD+, other issues are addressed as well, including biodiversity and sustainable forest management. These are arguably insignificant in comparison to bilateral agreements between developed and developing states, in which the latter agrees to completely halt deforestation in return for aid, such as the recent agreement between Norway and Liberia.Footnote ¹⁶ Despite the adoption of mechanisms such as the REDD initiatives, we are witnessing an increasingly rapid rate of decline in forests, including forests that are supposedly protected. Between 2000 and 2005, 1.75 million hectares of forest in protected areas were lost (Scharlemann et al., Reference Scharlemann, Kapos, Campbell, Lysenko, Burgess, Hansen, Gibbs, Dickson and Miles2010). This decline is not only legitimised, but actively encouraged by both international and national law and policy relating to forests, and is contrary to Lovelock's Gaia theory (2009), which would seek to protect forests because of their important role in regulating the Earth's climate. At the 1992 UN Conference on Environment and Development, the international community failed to agree anything more than a set of non-legally binding principles on forests.Footnote ¹⁷ These principles only pay lip-service to the crucial role of forests in combating climate change, with Principle 2(b) noting that they act as carbon sinks and reservoirs in a list of primarily anthropocentric benefits. It is also clear that long-term advantages in preserving forests are losing out to short-term interests. In 2012, Brazil passed controversial revisions to its Forest CodeFootnote ¹⁸ – legislation that is primarily intended to protect the Brazilian rainforest, which not only absolved private landowners of the obligation to restore 58 per cent of the area that had been illegally deforested, but also permitted a significant increase in future deforestation. These changes were introduced in response to growing popular resentment against enforcement efforts to reverse deforestation rates and pressure from the powerful agribusiness lobby (Soares-Filho et al., Reference Soares-Filho, Rajão, Macedo, Carneiro, Costa, Coe, Rodrigues and Alencar2014). It is ironic that efforts to prevent illegal deforestation have led to a change in the law that has permitted further destruction of previously protected forest. To counter the risks created by the revised Forest Code, Soares-Filho et al. believe that incentivising forest preservation will be crucial, including through the REDD and REDD+ initiatives. However, these are not without critics and concerns have been raised about their effectiveness. Hinsley et al. (Reference Hinsley, Entwistle and Pil2015) note that issues such as hunting, selective logging and invasive species can result in a reduction of forest biomass, which in turn reduces the forest's carbon storage capacity, but measuring tree cover, the primary indicator under REDD, will not reveal the extent of these problems. The proposed solution is biodiversity monitoring, particularly by local communities. Similar arguments are made by Hodas (Reference Hodas, Jeffery, Firestone and Bubna-Litic2008), who advocates greater incorporation of climate change considerations in biodiversity laws and vice versa. He points to a number of recent examples where biodiversity laws are being used to try and address climate change but are ill-suited to the task because of a lack of integration within the two regimes (Hodas, Reference Hodas, Jeffery, Firestone and Bubna-Litic2008, p. 385). Further, Hodas argues that policies pursued under one regime could be to the detriment of the other. Monoculture reforestation projects might maximise rapid sequestration of carbon but can also reduce species diversity, harm ecosystem vitality and accelerate biodiversity loss (Hodas, Reference Hodas, Jeffery, Firestone and Bubna-Litic2008, pp. 392–393).

For some commentators, such as Morgera (Reference Morgera2011), the solution is to enhance the integration of biodiversity and climate change law and policy within the overarching frameworks of the Biodiversity Convention and the UN Framework Convention on Climate Change.Footnote ¹⁹ According to Morgera, this is already gradually taking place, for example through the incorporation of climate change considerations into the Biodiversity Convention's programmes and initiatives. Greater integration between climate change and biodiversity regulation would certainly address some of the concerns raised by Hodas, as it would facilitate a more coherent approach in environmental law at all levels and reduce apparent contradictions in the two regimes. However, in my view, advocates of greater legal protection for biodiversity should be wary of pursuing a strategy that would link it too closely with the extremely contentious issue of climate change regulation, where, notwithstanding the 2015 Paris Agreement,Footnote ²⁰ international negotiations show little sign of any meaningful progress (Sofferman, Reference Sofferman2014). A second option would be to abandon the Biodiversity Convention and devise an entirely new biodiversity regime, either in a new instrument or through wholesale reform of the present Convention. Guruswamy (1998) is an advocate of this approach, and raises concerns that are similar to those that Adams made in relation to designation discussed above. In particular, he argues that ‘a false sense of achievement’ is created by exaggerating the merits of the Convention, which risks both public ignorance of the parlous state of much of the world's biodiversity, and complacency in national and international decision-makers (Guruswamy, Reference Guruswamy, Guruswamy and McNeely1998, p. 356). Again, I question whether this would achieve the reconciliation between biodiversity and climate change policies that Hodas believes is necessary. Caution should be exercised before reopening negotiations on the Biodiversity Convention, or a new instrument to replace it, as there would be no guarantees that a stronger instrument would be agreed. Instead, some parties might use the opportunity to weaken further the already very soft obligations in the current text – a phenomenon that is already being observed (Harrop and Pritchard, Reference Harrop and Pritchard2011). An alternative to reforming the Biodiversity Convention regime would be to impose climate change obligations on states not covered by the 1997 Kyoto ProtocolFootnote ²¹ through obligations contained in other regimes. Doelle (Reference Doelle2006) argues that the effects of climate change constitute a breach of the duty to avoid polluting the marine environment in Article 145 of the 1982 UN Convention on the Law of the SeaFootnote ²² and, notwithstanding the notable question of causation, a claim could be brought under the Convention's compulsory dispute settlement procedures by, for example, a small island-developing state. This legal sleight of hand is not an ideal solution to the problems facing the global environment however. Instead, what is needed is a more coherent approach that is built into law and policy, and recognising that plants are participants in any solutions we devise, such as programmes designed to prevent deforestation, would provide a conceptual framework for this.

It is not only global problems to which humans turn to plants to provide a solution. Trees are often used to screen houses from the noise and sight pollution of adjacent roads. In the US, the Federal Highways Agency advised state highway agencies to plant native flora in order to address roadside problems such as erosion:

The importance of road verges and similar habitats has been noted by both policy-makers and conservationists. Le Viol et al., for example, believe that:

Such concerns are not mirrored in legal protection, however, as the commonplace, with the notable exception of birds, is often absent from both national and international protective provisions (Harrop, Reference Harrop1999). Using plant species that grow in adjacent areas to recolonise disturbed sites could simply be considered common sense and to an extent this is true. However, Harper-Lore's assessment of the general approach of the Federal Highway Administration reveals a philosophy that goes deeper than this, and thus a fundamentally different approach than is currently seen in the law as well: ‘Obviously protecting those preserves [of native flora] should be a top priority so that we can continue to work with nature and do so thoughtfully’ (Harper-Lore, Reference Harper-Lore1996, p. 830, emphasis added). For my purposes, ‘working with nature’ means more than simply benefitting from an ecosystem service that is little more than a fortunate consequence of a natural process. It is the deliberate choice of particular plants to achieve a particular social aim. In some cases, this could be an ecosystem service, such as forests acting as carbon sinks. In others, no ecosystem service will be provided, but the plants nevertheless are employed to achieve a certain desirable anthropocentric effect. The choice of planting scheme in public areas to attract particular users and bring down the crime rate discussed in the next section is an illustration of this. Within this more nuanced approach to nature conservation, plants may be seen as participants in society, and partners in a mutually beneficial relationship. The Federal Highway Agency's guidance in relation to roadside verges illustrate how the ideas presented in this paper might be put into practice, and how we can offer a new narrative that may begin to break the path dependence apparent in environmental law. Adopting such an approach on a much wider scale would better enable us to deal with both global problems such as climate change and more localised concerns such as renewing degraded habitats.

V. The formative role of plants in shaping social spaces

Plants’ contribution to the achievement of social goals is perhaps the most abstract way in which they can been to participate in society. Whilst efforts are now being made to work with plants to address local and global concerns, the effects of this collaboration are not immediately apparent. Either they take time to manifest or a lack of proper integration means other policy decisions undermine any impact they may have. A more direct influence can be seen when examining how they shape social spaces, be these public parks, private gardens or common land. Of course, this may also contribute to social goals, for example if a community wishes to reduce certain antisocial activities. Research has been conducted into how different sectors of a community respond to social spaces, particularly parks and other recreational areas. In this research, evidence of the formative role of plants can be found. The choice of planting has been shown to be relevant to feelings of safety, particularly among women, and the presence of drug dealing and other crime (Francis, Reference Francis, Zube and Moore1987, p. 89). High hedging and dense planting schemes, which reduce visibility, increase feelings of insecurity. Open flower beds, in comparison, are seen as more welcoming (Francis, Reference Francis, Zube and Moore1987, p. 91). What this demonstrates is that plants are more than just part of the setting for social interactions. Rather, they determine who uses a space, and what they use it for. Where feelings of insecurity exist, ‘the judicious selection of plant species and proactive design or redesign measures’ are proposed as a solution (Agyeman, Reference Agyeman2013, p. 151). This could certainly contribute to addressing problems such as drug dealing, although account should be taken of Murphy's (Reference Murphy and Wilson1988) comments regarding the ecological appropriateness of the choice of plants noted above. Further, there are risks in reclaiming social spaces for the wider community. As Francis points out, whilst the redesign of a public space will often aim to create a sense of security for users of that space, it may have the additional consequence of discouraging certain users, thereby reducing social diversity. Further, certain undesirable users, such as drug dealers, will simply move to a new space rather than cease the unsocial activity (Francis, Reference Francis, Zube and Moore1987, p. 89). This, however, relates to deeper problems in society, which fall outside the scope of the present discussion. What remains relevant, despite these valid issues, is that plants, for better or worse, shape the character of social spaces. Where they have a negative impact and there is a lack of political will or resources to change the space, alternative grassroots solutions should be sought. The open space movement in the US is an example of how local communities have responded to a lack of suitable social spaces in their localities. ‘In contrast to public parks and playgrounds developed by park officials and professional designers, community open spaces are green areas designed, developed, and managed by local residents for the use and enjoyment of the community’ (Francis, Reference Francis, Zube and Moore1987, p. 81). They also demonstrate the deeper relationships that exist between people, both individually and collectively, and plants. The Dunton Community GardenFootnote ²³ in Bedfordshire (UK), which is managed and maintained by the community, illustrates how these relationships develop: the garden is a play area for children and provides produce for local residents, educational facilities and services for vulnerable people in the community. Different sectors of the community benefit differently from the garden depending on which plants they choose to interact with: the children from the lawns and open spaces, others from the vegetable plots and cultivation areas.

It is not only larger public spaces that plants help to shape. The same observations equally apply to individual private gardens. As with public spaces, the nature of the garden reveals something of the characteristics of the society (in this case the household) that uses it:

Gardens are more than a simple reflection of the occupier's lifestyle. In her study of gardens in Puerto Rico, Kimber suggests that the choice of plants and how gardens are laid out determine the social activities that take place in that space:

Gardens as understood in the developed world are not homogenous spaces: patio areas are set aside for socialising in summer evenings, flower beds are maintained for aesthetic reasons, the lawn is kept clear for recreation, the patch next to the shed becomes a vegetable plot and the end of the garden is given over to wildlife. Plants are the framework of a social space and the activities that take place there. Going further, it has been suggested that gardens, specifically lawns, have evolved to become a measure of social standing. ‘Today, the suburban lawn has been accused of being both a social and maintenance tyrant. It demands adherence to meticulous care regimes to avoid becoming the neighbourhood pariah with unkempt grass’ (Poindexter, Reference Poindexter, Holder and Harrison2003, p. 204). Plants, therefore, influence not only the development of a social space, but the owner of that space's position in social hierarchies, which will in turn affect how others in that society relate to them. Poindexter alludes to this, noting that ‘The maniacal attention to lawn along with the “fenceless state” of suburbia can be used as a metaphor for the tension between the individual right to private property and the social interconnectedness of all property’ (Reference Poindexter, Holder and Harrison2003, p. 204). Again, similarities may be drawn here with actor-network theory, with plants affecting an actor's place within a particular network. The owner of an untidy lawn has a choice: he may do nothing and be content to be seen as a social pariah, or he can mow the lawn in an effort to improve his standing in the community, thereby altering his position in the network. In both scenarios, it is the owner's interaction with the lawn that influences his position in the network relative to the other actors, namely his neighbours.

The ability of the law to be sympathetic to the deeper relationships between a community, spaces and the plants that constitute them is demonstrated in the context of commons. The concept of town and village greens in England and Wales is primarily governed by the Commons Act 2006 and an increasingly significant body of case-law.Footnote ²⁴ In brief, section 15 allows for the registration of land as a green where ‘a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of rightFootnote ²⁵ in lawful sports and pastimes on the land for a period of at least 20 years’. The Act therefore enables a local community to protect a space that has particular, and potentially highly localised, cultural significance. In other words, the law overcomes the narrow approaches of protecting land on the basis of quantitative criteria and instead looks at the deeper social relationships attaching to the site. There is no doubt that there are flaws in the way the law currently operates, despite recent legislative, administrative and judicial attempts at clarification (Bowes, Reference Bowes2012). Particularly relevant for this discussion is what has been described as ‘the unintended policy consequences’ of the Commons Act 2006, which have transformed the town and village greens provisions into a regime that is of greater use in protecting the environmental characteristics of an area, rather than as a cultural asset that improves the well-being of a local community (Bogusz, Reference Bogusz2013). Equally important, however, is the potential scope to develop the concept of town and village greens to reflect the broader environmental concerns and goals of society. Holder and McGillivray (Reference Holder and Mcgillivray2007) seek to expand the concept through the public trust doctrine, arguing that the wider public enjoys a form of easement over common land. Going beyond this, it is possible to argue that there is a much broader legal concept of commons held in the public interest to which the public as a whole owes a responsibility. This is similar to ideas discussed by Coyle and Morrow (Reference Coyle and Morrow2004). In charting the development of environmental law in the UK, they identify a paradigm shift from property rights over nature to responsibilities for nature:

To date, the courts have been reluctant to adopt a broader approach when determining whether the tripartite test has been satisfied for the purposes of registering a green, and the current consensus among commentators is that the law already disproportionally favours those who wish to register land (Bogusz, Reference Bogusz2013; Bowes, Reference Bowes2012; Goymour, Reference Goymour2007). As such, the town and village greens regime constitutes a further missed opportunity to develop the law in a manner that affords protection to plants because of how they participate in society – in this case through the formation of social spaces that become focal points for a community. New criteria could be introduced, for example the social benefits that the plants found on a particular site deliver, which would permit the legal protection of that site. Currently, designation of protected sites is limited for reasons of conservation value, the flaws in which were discussed above, or, as in the case of town and village greens, the recreational use of a space. With regard to the specific example of town and village greens, however, there are valid reasons for adopting a more restrictive approach. Firstly, the historical legal context of town and village greens is very narrow and has only ever been intended to protect small pockets of land on which local communities have enjoyed sports and other pastimes. Secondly, and perhaps more importantly due to the human rights implications (Meager, Reference Meager2011), the land in question is often privately owned. However, private ownership is not a bar on land being registered as a green, and so would not necessarily have to be a bar on land being afforded protection because the plants located on it have influenced its development as a social space.

VI. The guiding role of plants in directing social behaviour

The previous section explored how the formative role of plants shapes the development of social spaces. This could be described as an indirect way through which plants influence individual (as opposed to collective) behaviour. The mugger sees a tall hedgerow along one boundary of a park and so chooses to lurk on that side rather than the other. The hedgerow shapes the space, and therefore the mugger's actions. Plants can also exert a more direct influence on individual behaviour, which will in turn affect social spaces and social goals if, for example, it discourages a particularly destructive behaviour such as logging. One way they do this is through their incorporation into normative codes, such as religion. There is a growing body of research advocating greater integration of religious and traditional beliefs with conservation (Gosler et al., Reference Gosler, Bhagwat, Harrop, Bonta, Tidemann, Macdonald and Willis2013; Bhagwat et al., Reference Bhagwat, Dudley and Harrop2011). Sacred sites have been found to contain significant biodiversity, especially when compared with the surrounding area (Dudley et al., Reference Dudley, Higgins-Zogib and Mansourian2009) and, although too small to support viable populations of larger species, can provide important stepping stones between larger protected sites if incorporated into a wider conservation network (Bhagwat and Rutte, Reference Bhagwat and Rutte2006). Further, the protection of sacred sites can avoid one of the key criticisms of designation, namely that denying access to people who have traditionally relied on resources in that area for their livelihoods can cause resentment towards the goal of conservation (Adams, Reference Adams2004, p. 117). Possible reasons why this is the case are provided in a study by Kareiva et al. (Reference Kareiva, Chang and Marvier2008) into the comparative success of World Bank projects with and without conservation goals. The study found that, although generally there were similar success rates between the two types of project in terms of poverty objectives, there was a negative correlation between the amount of money spent on biodiversity targets in projects with conservation objectives and the achievement of poverty reduction objectives, suggesting that, in some cases, poverty was neglected in favour of biodiversity. More conceptually, Adams attributes this flaw of designation to the ‘fortress thinking’ paradigm that once dominated modern (Western) conservation thinking, or in Mace's (Reference Mace2014) terms a ‘nature for itself’ framework. A consequence of the illusion of ‘pristine nature’ becoming embedded in society is the desire to protect it from the adverse effects of human life. This has in turn made eviction and the denial of rights to occupy traditional lands ‘a common experience’ for many people around the world (Adams, Reference Adams2004, p. 114). In contrast, access to sacred sites will often be limited to a small number of individuals, such as religious leaders, if not totally prohibited (Dudley et al., Reference Dudley, Higgins-Zogib and Mansourian2009), and therefore the wider populace is not being denied access to essential resources on which they have previously relied. Indeed, designating sacred sites could increase indigenous support of wider conservation efforts if they are seen to be sympathetic and supportive of traditional beliefs. In addition to the conservation advantages, more formal protection of sacred sites has some benefit for the culture that reveres the site in question, such as a stronger enforcement regime and greater resources (Dudley et al., Reference Dudley, Higgins-Zogib and Mansourian2009). On the other hand, it can also mean control of the site is taken, if not completely, then partially, from the traditional owners and the increased tourism that can result from inclusion in a national system of protected sites can have adverse impacts on the integrity of the site. There would, therefore, be other trade-offs that need to be made between the preservation of culture and traditions and the facilitation of ecotourism (Dudley et al., Reference Dudley, Higgins-Zogib and Mansourian2009). Such trade-offs could only be made on a case-by-case basis.

It is clear then that, despite some caveats that can be overcome through proper engagement with stakeholders (most notably the traditional owners of a sacred site) and adequate management practices, religion can play a supportive role in developing conservation policy. How does this translate into plants directing individual behaviour? In their discussion of sacred groves, Bhagwat and Rutte refer to a ‘social fence’, namely practices based on tradition rather than conservation doctrine that are enforced through social rather than legal sanctions that have arisen over time to regulate the management and exploitation of particular sites. In some cases, such a regime may prove more effective than more modern legally imposed protected sites:

The local peoples’ behaviour was influenced not by the law, but by the custom associated with the saffron water, and official recognition of this led to substantive protection of the site. The influence plants had on the Udaipur community is clear, and such practices in turn enhance plants’ ability to assist in achieving social goals. For example, the act of protection itself would contribute towards the Aichi target of protecting 17 per cent of the world's terrestrial area and, if it was a substantial area of forest, then it would also assist in humanity's efforts to reduce the pace of climate change. This example also demonstrates how a new environmental narrative can address the weaknesses of mainstream conservation practices. Here, the narrative of the saffron water, which was grounded in the local community's traditional beliefs, delivered the protection that conservation law could not.

Saffron water is derived from Crocus sativus, a plant that has many cultural and medicinal uses (Rukšāns, Reference Rukšāns2010, p. 97). This illustrates that religious and spiritual beliefs attach to not only sacred sites, but individual species, and potentially individual specimens, as well. ‘That a plant or animal is sacred does not necessarily mean humans leave it alone, but it does imply some human responsibility toward the species’ (Dudley et al., Reference Dudley, Higgins-Zogib and Mansourian2009, p. 570, emphasis added). The term ‘responsibility’ invokes notions of rights similar to those advocated by Stone (Reference Stone2010). Granting plants rights in human-centred legal frameworks is not necessary when acknowledging how they participate in society. Neither would this legitimise theories such as Stone's in mainstream legal policy. What it would do, however, is legitimise discussions about these theories, as reformed understanding of the social position of plants would demand reformed legal approaches to their protection. This might take the form of legal rights, or it might instead be stricter obligations to take impacts on plants into account in land-use and planning procedures, for example. Bhagwat and Rutte identify a number of issues that weaken the ‘social fence’ that protects sacred sites: the (forced) transferral of legal ownership and property rights to government and private entities, social and economic changes and a decline in traditional belief systems as cultures become ‘Westernised’. There are similar pressures on individual species that were once revered. Homewood (Reference Homewood, Leader-Williams, Adams and Smith2010) observes this in relation to the Maasai tribes in Africa, noting that ‘Tolerance of wildlife is increasingly stretched as poverty or profit drives people to cultivate, and wildlife damage becomes an increasing issue’ (p. 189). Similar observations have been made by Harrop (Reference Harrop, Brakes and Simmonds2011) in relation to pressures on indigenous whaling. The solution is twofold. First, there must be greater efforts to educate younger generations of the importance of these sites and species, and secondly mainstream society must be more sensitive to the impacts social and economic development can have on traditional cultures (Bhagwat and Rutte, Reference Bhagwat and Rutte2006). Recognising plants as valid participants in society would be one way in which the broader social framework that would support these solutions could be established.

A valid argument can be made that it is more the religious belief rather than the plants themselves that influences an individual's behaviour. However, this would again be an overly restrictive position that relegates plants to too minor a role. It ignores the status, and more importantly the equal status, that some religions bestow on plants. A study into the potential benefits of integrating Islamic environmental teachings into forest management practices in Sumatra is an illustration of this. ‘In the Islamic view there is no difference between animate and inanimate; all are part of life and praying to Allah’ (McKay, Reference Mckay2013, p. 13). This is reflected in numerous mantras found in the Qur'an, such as:

The act of praying and worship is a social one in which plants are believed to participate in alongside human followers of Islam. Here, similarities may be drawn with Leopold's (1968) land ethic: the community has been expanded through the belief that nature also engages in acts of worship. It is this wider perception of plants that must be integrated into secular society and administrative practices. This requires more than merely a change in attitudes, but also a change in behaviours, as the former alone would not guarantee any change in approach to plants or the wider natural world (McKay et al., Reference Mckay, Mangunjaya, Dinata, Harrop and Khalid2013). Again, a change in narrative, this time drawing inspiration from religious belief, has the potential to achieve greater levels of compliance than typical legal instruction.

Incorporation into religious teachings is not the only way through which plants exercise an influence over individual and collective human behaviour. They also do so through the generational evolution of particular practices and ways of life. This is clearly demonstrated in the context of agriculture, in which biodiversity can be seen as socially constructed. Street (Reference Street, Holder and Harrison2003) believes that agricultural biodiversity ‘needs to be understood as the outcome of countless adaptive bodies of knowledge of plants and their environments, bodies of knowledge that not only govern practices but are rooted in practice and experience’ (p. 330). This practice and experience, an example of the quotidian epistemology referred to by Morrow, derives from the choice of plants early farmers chose to cultivate. To put it another way, agricultural practices manage the cultivation of plants in a particular way, but it is the species of plants that determine how those agricultural practices have evolved. If a community has the option to cultivate one of two potential crops, each with very different irrigation needs and requiring harvesting at different times of the year, their choice will have a formative influence on that community's annual calendar, and therefore their development as a society. In short, agricultural societies exist in the manner they do largely because of the plants their ancestors chose to cultivate.