Article 9 of the Bern Convention states various criteria that need to be met before exceptions from strict protection can be made. The article should be read in light of the general rules governing treaty interpretation. According to the 1969 Vienna Convention on the Law of Treaties (VCLT) and customary international law, a treaty should be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (Vienna Convention, Article 31.1). In addition to treaty text and objectives, “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”, “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”, and “any relevant rules of international law applicable” may be taken into account (Vienna Convention, Article 31.3). Finally, the original intentions of the parties, as recorded in the treaty’s drafting history, can be considered as a supplementary means if necessary. In the case of the Bern Convention, an “Explanatory Report” records some of the intentions of the ad hoc Committee that drafted the Convention text. Whereas the Report itself notes that it “may facilitate the understanding of the Convention’s provisions,” the Report “does not constitute an instrument providing an authoritative interpretation of the text of the Convention” (Explanatory Report, para. II). Of special relevance for our present purposes is Revised Resolution No. 2 (1993), adopted in 2011 by the Standing Committee of the Bern Convention (the Convention’s main decision-making body in which all parties are represented) in order to “further clarify the conditions laid down in Article 9 for the granting of exceptions.” The Resolution has an Appendix entitled “Interpretation of Articles 8 and 9 of the Bern Convention” [hereinafter “Appendix to Resolution No. 2”]. In the Resolution itself, the Standing Committee “recommends that Contracting Parties bring the appended document, which contains useful guidance for interpreting the scope of Article 9, to the attention of all those responsible for applying and interpreting the Convention in their respective countries”. Within the scheme of the VCLT, the guidance provided in the Appendix thus appears to have significant interpretive value in terms of “subsequent agreement”. We also draw attention to the legal analysis prepared by a consultant in connection with the development of Revised Resolution No. 2, which is a helpful background document (Shine 2010).

The case law of the Court of Justice of the EU (CJEU) and the European Commission’s guidance regarding the application of derogations from strict protection under Article 16 of the Habitats Directive – the counterpart (and implementation) of Article 9 of the Bern Convention – is instructive too. Even if this case law and guidance do not apply to non-EU member states like Norway, they do represent an approach that could prima facie be presumed to be consistent with the Bern Convention as the EU and its member states are parties to the Convention, and the Habitats Directive is expressly intended to implement the Convention within the EU (Epstein 2014). Furthermore, the vast majority of wolves within the Scandinavian population are within an EU member state, Sweden, such that it is important to understand practices in all parts of the population in order to assess cumulative effects. We will therefore make some reference to case law and guidance regarding the Habitats Directive.

However, it is important to apply restraint in the degree to which such case law and guidance under the Habitats Directive is considered indicative of the correct interpretation of the Bern Convention. This is so for the plain reason that the Bern Convention is the leading framework, higher up in the hierarchy than the Habitats Directive. Thus, the Directive must conform to the Convention, not the other way around. This effectively precludes the Directive’s regime from providing EU member states with broader possibilities for killing strictly protected Bern Convention species than the Convention itself provides. Conversely, it is possible for the Directive to be more restrictive in this regard, and indeed Article 12 of the Convention expressly allows this. However, to what extent the Directive in fact imposes further constraints on national authorities for the killing of wolves and similar species than the Convention does is not a question we aspire to answer in this article (but see, e.g., Darpö and Epstein 2017).

There are many different visions of nature conservation (Linnell et al. 2015; Mace 2014). A fundamental aspect of our discussion concerns determining if the Bern Convention seeks to conserve wildlife populations using protection as a context-dependent tool, or if the protection of individuals from anthropogenic mortality is an explicit objective in itself. Our view is that the Convention definitely reflects the former approach, i.e. aiming at the conservation of populations, based on the following lines of evidence.

(1) Throughout the preamble and Articles 1-3 the Convention’s text uses the word “conservation” to refer to goals. Explicitly, Article 2 refers to “…maintain the population of wild flora and fauna …”.

(2) The fact that there are two different appendices for wildlife species, where Appendix III opens for exploitation, implies that the prevention of killing that is required for Appendix II species is a context-dependent measure appropriate for some species in some countries and necessary for their conservation, rather than an independent objective.

(3) The Convention applies to the entire European landscape, not just protected areas, which implies a recognition of the multi-use landscape in which European wildlife conservation occurs. This, in turn, automatically implies the need for pragmatic management and compromises, which is explicitly recognized in Article 2’s text that allows populations to be “adapted” to other considerations than ecological ones, and in the inclusion of Article 9 that opens for exceptions from Appendix II’s prohibition on killing. The Bern Convention was apparently intended by its drafters as “an instrument that would permit flexibility of action within a common purpose” (Explanatory Report, para. 10), and the possibility of derogations from strict protection in Article 9 clearly reflects this approach.

(4) The word “protection” is not used as an opposite to killing (as in the widespread modern sense of the meaning of the word protection). For example, Article 7 requires parties to “… ensure the protection of the wild fauna species ….” but then goes on to permit the “…. exploitation of wild fauna ….”. It is important to remember that the Convention was written in the 1970s before much of the present-day terminology of sustainable use, conservation biology, biodiversity and animal welfare had developed. In this period “protection” referred to the inclusion of wildlife within a legal framework that limited human actions because the default at the time was a lack of any legal status at all. In other words, protection referred to “inclusion in a legal framework” rather than “protect all individuals from deliberate killing”.

(5) Animal welfare considerations are implicitly included via Appendix IV’s listing of prohibited mechanisms of killing.

(6) Article 2 formulates the goals of the Convention and recognizes that the conservation goals for a species need to take into account a diversity of interests, including cultural, economic and recreational requirements, in addition to the ecological. This can be taken as explicit recognition of the need to find compromises between competing interests, even if Article 2 must clearly be interpreted as giving precedence to ecological considerations in cases of irreducible conflict (Trouwborst et al. 2017b). Two of the most relevant interests that potentially compete with the Convention’s primary ecological imperative are hunting and livestock grazing. Hunting of wild ungulates is clearly a major source of income, cultural tradition and recreational value in rural Norway, as in most of Europe. Livestock grazing is also widespread and serves as both an economic activity in rural areas, and as a potentially important action required to maintain grazing dependent biodiversity and cultural landscapes (highlighted in the 2000 European Landscape Convention, for example). The semi-domestic reindeer herding conducted by the indigenous Sami people of central and northern Fennoscandia is clearly an important cultural activity, which is also protected by other conventions such as the 1989 Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No. 169), the Norwegian Nature Diversity Act of 2009 (section 1) and the Norwegian constitution (§ 108).

In summary, the Convention’s objectives are evidently focused on the conservation of populations, whereby strict protection of individual animals is one means that may be needed to achieve this goal within certain contexts. However, it is important to underline that none of these arguments permit deviation from the obligation to work towards and ultimately ensure a population level conforming to the requirements of Article 2 of the Convention.

Building on our prior analysis of Article 2 (Trouwborst et al. 2017b), it is appropriate in the present context to dwell on the reference this provision makes to “cultural requirements”. In particular, Article 2 obliges Bern Convention parties to “take requisite measures to maintain the population of wild flora and fauna at, or adapt it to, a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements and the needs of sub-species, varieties or forms at risk locally.” The reference to cultural requirements is somewhat enigmatic. As Bowman et al. (2010: 300) note, “it would certainly be difficult to [define a population level] by reference to cultural considerations.” However, the insertion of the word “cultural” must have happened for a reason, and it seems reasonable to assume, therefore, that cultural requirements such as preservation of local ways of (human) life could exert an influence on the population level required by Article 2, both upwards and downwards, depending on the circumstances. Nevertheless, it would not be reasonable to assume that cultural considerations could justify a population level that is so low that the population is actually threatened. In other words, ecological requirements would appear to impose an absolute minimum, the breaching of which cannot be justified by cultural requirements or otherwise. Where precisely above this absolute minimum parties should aim the population level to be, would appear to be the result of a balancing of ecological, scientific and cultural requirements, and to a lesser extent economic and recreational requirements as well.

The existence of the aforementioned minimum population level – where ecological requirements would trump cultural requirements besides economic and recreational ones (Bowman et al. 2010; Trouwborst et al. 2017b) in case of conflict – follows inter alia from the Convention’s objective as formulated in Article 1, which makes clear that the exclusive aim of the Convention is wildlife conservation, not conservation of human cultures or economies. That Article 2 should logically be interpreted in light of this objective as formulated in Article 1 is further reinforced by the Explanatory Report to the Convention, which succinctly states (in para. 21) that Article 2 “contains a main obligation that follows from the aims stated in Article 1, paragraph 1.” An interpretation whereby cultural requirements would be presented as justifying a population level at which the population is actually threatened is thus simply untenable in light of the basic rules of treaty interpretation. The separate minimum requirements of the “survival of the population” set out in Article 9 and keeping “populations out of danger” set out in Article 7 would also independently prevent “cultural requirements” from justifying policy targets set at a level where the population would be threatened.

As we acknowledged earlier (Trouwborst et al. 2017b), where the aforementioned absolute minimum population level required by Article 2 lies precisely is difficult to pinpoint. There are, however, certain indicators of potential utility. In Norway, for instance, once wolves are no longer listed as threatened on the national Red List, that would appear to provide the authorities with an argument to say that the population of wolves in Norway corresponds to ecological requirements as demanded by Article 2. The same could probably be said if wolves in Norway can be shown to be at a “favourable conservation status” as defined under the Habitats Directive.

Regarding the condition that derogations may only be authorized when “there is no other satisfactory solution”, the Appendix to Resolution No. 2 holds that the authorities should “choose, among possible alternatives, the most appropriate one that will have the least adverse effects on the species while solving the problem,” while adding that the reasoning backing the choice made should be “objective and verifiable”. Regarding the prevention of damage to livestock or other property, “less oppressive measures” can be considered as an alternative solution to killing.

When discussing the satisfactory alternatives test, the European Commission’s guidance regarding the Habitats Directive emphasizes that “recourse to Article 16 derogations must be a last resort” (European Commission 2007, para. 38, emphasis in original). It is furthermore observed that:

“The appraisal of whether an alternative is satisfactory or not, in a given situation, must be founded on objectively verifiable factors, such as scientific and technical considerations. In addition, the solution finally selected, even if it involves a derogation, must be objectively limited to the extent necessary to resolve the specific problem or situation. Evidently, the requirement to consider seriously other alternatives is of primary importance. The discretionary power of Member States is limited, and where another solution exists, any arguments that it is not ‘satisfactory’ will need to be convincing. Moreover, it should be stressed that another solution cannot be deemed unsatisfactory merely because it would cause greater inconvenience to or compel a change in behavior by the beneficiaries of the derogation.” (European Commission 2007, paras. 40-41)

The assessment whether there exists any “other satisfactory solution” should be context-dependent and involve a confrontation of the measure reviewed (e.g. hunting) with the alternative measures so as to be certain that the restrictions imposed are justified. This amounts to a proportionality test: a) is the alternative effective, and b) can the alternative achieve the same end in a way that is less harmful to the carnivore’s population?

There is considerable experience across Europe when it concerns protecting domestic livestock from large carnivore depredation (Breitenmoser et al. 2005; Linnell et al. 2012). A range of measures including electric fencing and intensive shepherding, both of which can also involve livestock guarding dogs, exist that can greatly reduce losses. However, the introduction of these measures can be very expensive and be associated with logistical challenges, certainly under Norwegian conditions (poor quality of grazing pastures, land-ownership patterns, high labour costs, and restrictive labour laws). The question then arises to what extent it is expected that Norway adapt a nationwide practice to accommodate wolves or how quickly this transition should occur? Norwegian wolf policy documents have been evolving since the 1980s. Throughout the late 1980s and 1990s it was already clear to policy makers that the areas along the border with Sweden would be the most likely to house a future wolf population (this was formally designated as a “wolf zone” in 2001) and also that dramatic changes to livestock husbandry would be needed (Miljøverndepartementet 1992, 1997, 2003). Therefore, there has been over 30 years of awareness of the issue in the area within and surrounding the current wolf zone. For semi-domestic reindeer, the situation is somewhat different as there are virtually no practical protective measures that can be adopted to hinder serious depredation by wolves, although compensation does exist to mitigate the economic losses.

In contrast, there is much less experience when it comes to demonstrating what works and what does not work to reduce social and perceptional conflicts. There is considerable practical experience with stakeholder processes (Reed 2008) and various forms of inclusive management in Europe (Sandström et al. 2009; Redpath et al. 2017). However, although inclusive management may be intrinsically important to satisfy modern day democratic principles and to address a sense of justice (Jacobsen and Linnell 2016) it is unclear if it alone can diffuse such complex conflicts as those associated with large carnivores. Information is often touted as a solution to some social conflicts, but again there are doubts concerning the extent to which it alone can address these wolf conflicts (Ericsson and Heberlein 2003). When considering how any measures might be successful in diffusing these conflicts it is crucial to consider how a package of multiple measures will come to bear on multiple conflict dimensions. This makes the task of documenting effects challenging, an issue made worse by the long memory of many of the parties in the conflict, such that any new measures will still be interpreted in light of perceived shortcomings of previous strategies. In conclusion, it will be highly challenging to document, or reject, the utility of any single measure used to address social and perceptional conflicts.

With regard to the condition in Article 9 that a derogation must not be “detrimental to the survival of the population concerned,” according to the Appendix to Resolution No. 2 the assessment whether this is so “should be based on current data on the state of the population, including its size, distribution [and] future prospects.” It is also made clear that account must be taken of “cumulative effects of several derogations,” and that “special caution should be taken in case of species that are not in ‘favourable’ conservation status.” There are four issues here relevant for the current discussion. The first concerns the number of animals to be killed relative to the size of the population. The smaller the proportion of the population to be killed, the more likely it is to be legally acceptable. Secondly, the implications of this depend very much on the scale of assessment, i.e. if we view the population as the wolves present in Norway, those present in Scandinavia, or those present in Fennoscandia and western Russia. The key biological issue here is that killing individuals in a small unit will always have greater uncertainties attached to it than the same actions in large units because the role of chance events is automatically greater in small units. Thirdly, there is a need to consider all mortality within the unit of assessment. If the assessment refers to the Scandinavian population, then it would imply a need for a formal coordination of planned mortality in both Norway and Sweden. No such coordination exists. Furthermore, the Bern Convention’s Standing Committee has recommended a set of guidelines on population level management of large carnivores (Linnell et al. 2008) to parties (Recommendation No. 137 (2008)) where a central tenet is that the use of the transboundary population level as the benchmark for assessments in connection with Article 9 should only be considered when formal management plans exist at the transboundary population level (Trouwborst et al. 2017a and 2017b). Finally, irrespective of the scale of assessments, all parties to the Convention have individual responsibilities towards species conservation and cannot outsource these to other countries (Trouwborst et al. 2017b). In the current Norwegian context with its small population, the condition of no detrimental effect is evidently a high hurdle.

Insofar as the purpose of a derogation is “to prevent serious damage”, the interpretive guidance in the Appendix to Resolution No. 2 provides the following:

“If ‘damage’ is taken to mean prejudice sustained by a person as a result of damage caused to those items of property that are listed in Article 9, paragraph 1, second sub-paragraph, and it seems legitimate to do so, then the adjective ‘serious’ must be evaluated in terms of the intensity and duration of the prejudicial action, the direct or indirect links between that action and the results, and the scale of the destruction or deterioration committed. ‘Serious’ does not, of course, necessarily mean that the damage was widespread: in some cases the item of property affected may cover only a limited geographical area (for example, a region), or even a particular farm or group of farms. However, the exceptions should be proportional to the damage suffered: the fact that an isolated farm sustains damage would not appear to justify the capture or killing of a species over a very wide area, unless there is evidence that the damage could extend to other areas. It is not required that the damage be already present. Rather, it is sufficient if serious damage in all likelihood will occur.”

The exception is limited to property, which in a Norwegian context would automatically include livestock, semi-domestic reindeer, dogs, beehives etc. The extent to which it can be extended to game populations has frequently been raised in policy debates and there is still some perceived uncertainty, as it depends if one refers to the game itself (not property) or the hunting rights (linked to property rights).

Regarding the meaning of the term “overriding public interest”, it would seem on the one hand that the Norwegian authorities have quite some discretion to determine themselves what they consider the term to cover. As Bowman et al. (2010: 318) put it, “the phrase ‘other overriding public interests’ appears to give the parties a disturbingly wide margin of discretion.” On the other hand, invoking this clause is certainly not a purely pro forma matter either, and indeed the Appendix to Resolution No. 2 considers the interpretation of the words “overriding public interest” to constitute “a very difficult problem”. Norway would be expected, when invoking it, to muster an adequate measure of concrete justification of the “public” and “overriding” nature of the issue. The latter term requires argumentation that the conflict reduction interest in which wolves are to be culled “overrides” the conservation utility of upholding the prohibition on killing them – a determination to be made in good faith and in light of the Bern Convention’s objectives. The Appendix to Resolution No. 2 takes the position that if push comes to shove it is up to the Standing Committee to determine whether an interest advanced by a certain party as an “overriding public interest” must indeed be considered to qualify as such, and that “in the event of difficulties” (i.e., disagreement between parties in this regard), the matter could be referred under Article 18 to an arbitral tribunal for definitive settlement. In light of the above, it would seem that protecting the aforementioned rural interests could in theory be construed as a matter of “overriding public interest” – especially in light of the fact that Norway has an active rural policy enshrined in policy and legislation. However, any explanation furnished by the Norwegian authorities must be persuasive. Whether killing wolves is then the best or only viable means to serve such supposed overriding rural interests will be the subject of the alternatives test discussed above.

The Explanatory Report clarifies that killing individual large carnivores should not be problematic in situations where public safety is at real and imminent risk. The Explanatory Report, para. 39 states that “there might be emergency cases where exceptions would have to be made without all conditions [of Article 9] having been fulfilled (e.g. the abatement of rabies)”. Furthermore, paragraph 31 states that the prohibitions of Article 6(a)-(c) do not apply in situations of self-defence: “It was not thought necessary to specify explicitly that the provisions under a, b and c would not apply in case of self-defence”.

Regarding the ‘judicious use’ clause from Article 9 (“to permit, under strictly supervised conditions, [etc]”), the accompanying conditions are procedural rather than substantive in the sense that, as the Appendix to Resolution No. 2 states, this ground may be invoked by a contracting party “for any reason which to it seems valid (for instance, hunting, recreation, etc),” although the party should “ensure that such reason is clearly identified.” The Appendix also states that a derogation based on the judicious use clause “should be temporary but may be renewed from time to time.” Generally, the scope this clause offers for justifying wolf culling appears to be tightly related to the overall number of wolves in Norway, as the overall status and trend of the wolf population would heavily influence the interpretation of what is “judicious” and what are “small numbers”. As the Appendix to Resolution No. 2 puts it, “the expression ‘small numbers’ should thus be construed in the light of the state of the conservation of the population.” To illustrate, killing 20 out of a total of 60 wolves would hardly qualify as “small numbers”, but killing the same 20 wolves out of a total population of 2000 wolves may very well do. Thus, in Norway, the current small wolf population and minimalist population target would seem to preclude a meaningful role for the judicious use clause in the foreseeable future.

It should be noted, moreover, that according to the interpretive guidance in the Appendix to Resolution No. 2, the wording “under strictly supervised conditions” should be understood to mean that “the authority granting the exception must possess the necessary means for checking on such exceptions either beforehand (e.g., a system of individual authorisations) or afterwards (e.g., effective on-the-spot supervision), or also combining the two possibilities.” In addition, the expression “to a limited extent” suggests, again in the words of the Appendix, that the authorized measures should be “limited in both space and time.”

Norway, together with Sweden, has invested in what are probably the world’s most intensive monitoring programs for large carnivores (http://www.rovdata.no). When it concerns wolves, this includes annual counts of numbers of packs and reproductions, an overview of the location of non-breeding, but territorial, pairs, and an assessment of genetic identity that for most individuals extends to knowledge of their full pedigree and inbreeding coefficients (e.g. Bensch et al. 2006). Effective wildlife management institutions are in place to set and monitor quotas as well as regulate the number of hunters allowed to engage in lethal control and hunting. Although the meaning of “selective basis” seems to mainly apply to ensuring that only the right species is killed (Shine 2010), the management institutions in place have no problem in focusing the killing of wolves on specific packs and regions. There are no obvious reasons why this form of controlled hunting could not be done by rural hunters as opposed to state agents, and indeed most of the proposed benefits of hunting will only be achieved by allowing rural hunters to conduct the activity.

Interestingly, Norway did not include this judicious use clause (Bern Article 9.1.v) in its 2009 Nature Diversity Act which otherwise included the other clauses. An attempt to modify the Nature Diversity Act accordingly in spring 2017 failed. However, our discussion of this clause is still important in case of future changes to the law, and for the more general value of this discussion for other Bern Convention countries.

According to the Explanatory Report, para. 39: “It was considered that the taking or killing of protected fauna for humane or humanitarian reasons was an accepted practice that did not require a specific provision in the Convention.” This would presumably apply to a wolf badly injured through accidental collision with a vehicle, for example. This is also supported by paragraph 4 “Duty to help” of Norway’s Animal Welfare Act of 2009.

Substantively, the Habitats Directive has copied the structure of the Bern Convention. In both instruments the wolf is listed as a strictly protected species and is protected in a similar way (although many countries also registered exceptions for wolves). As in the Bern Convention, the system of strict protection must include the prohibition of the “deliberate capture or killing of these species” (Habitats Directive, Article 12). Also comparable to the Convention, exceptions to this strict protection regime may be justified when one of the five grounds occurs, when there is “no satisfactory alternative”, and such an exception would not be detrimental to the maintenance of the populations of the species concerned at a favorable conservation status in their natural range (Article 16.1).

The 2007 Finnish wolf case, in which the CJEU ruled on the compatibility of lethal control of wolves with their conservation, could be helpful when interpreting Norway’s obligations under article 9 of the Bern Convention. The case concerned 22 Finnish hunting permits that allowed the killing of individual wolves in order to prevent serious damage to livestock and dogs. This ground for derogation is listed under article 16.1 of the Habitats Directive, and mirrors one of the grounds for derogation under the Bern Convention. The Commission brought an infraction action against Finland claiming that since (i) the conservation status of the wolf was not favourable in Finland, (ii) alternative approaches could be employed and (iii) hunting permits were issued without establishing that these particular wolves caused serious damage, the authorization to hunt wolves did not satisfy the conditions laid down in Article 16.1 of the Habitats Directive (Case C-342/05, Commission v Finland).

The Court reiterated that the favourable conservation status of the populations of the species concerned in their natural range is a necessary precondition for the derogations to be granted. Nevertheless, it held that the granting of such derogations remains possible by way of exception if they do not worsen the unfavourable conservation status of those populations or prevent their restoration at a favourable conservation status. Thus, if the killing of a limited number of wolves has no effect on the objective of maintaining the population at a favourable conservation status in its natural range, such killing may be allowed. In any event, such a decision has to be aimed at animals likely to cause damage, be based on an assessment of the effect of the killing on the maintenance at a favourable conservation status of the population, and should contain a clear and sufficient statement of reasons as to the absence of a satisfactory alternative.

Regarding the complaint by the Commission that hunting permits were issued on a preventive basis or without any relationship with the particular wolves causing serious damage the CJEU observed that Article 16.1 of the Habitats Directive does not require serious damage to be sustained before derogating measures can be adopted. The Court, however, did not define what constitutes “serious damage” or to what extent wolf culling on a preventive basis is allowed (e.g. to improve social tolerance for species), but it did point out that there was little biological research available on the question of whether continued hunting keeps wolves wary of humans and thus helps to reduce damage. It concluded therefore that “in those circumstances, the Commission’s complaint relating to the fact that hunting permits are issued on a preventive basis must be upheld” (Case C-342/05). As the Court concluded, by authorising wolf hunting on a preventive basis, without it being established that the hunting is such as to prevent serious damage, Finland has failed to fulfill its obligations under the Directive (Epstein 2017).

The sole overarching objective of the Bern Convention is nature conservation. The arena for conservation in which the Bern Convention was crafted to operate, however, is the entire multi-use and human-dominated of landscape of Europe, not just the protected areas. Besides ecological requirements, the Convention therefore also caters for the incorporation of economic and cultural requirements. As long as the paramount minimum requirements regarding species’ conservation status are met, the Convention provides room for flexibility, exceptions, and necessary management actions.

Furthermore, our analysis confirms that the Bern Convention is intended to promote the conservation of wildlife populations rather than prevent the killing of individual animals as such. Avoiding the deliberate killing of animals was included as a context dependent measure to bring about these goals when needed. A problem is that there is an apparent lack of consistency concerning which countries opted for reservations for Appendix II designation of wolves and the present status of their wolf populations. Furthermore, the existing mechanism (Article 17) to permit the adjustment of Appendix designation in response to the success or failure of conservation measures over time has not been utilised very often, and the dozen occasions on which the appendices have been amended all involved the addition of new species. Considering that more than 37 years have passed since the Convention was drafted and the appendices drawn up it is not surprising that there are now some questions about the extent to which they match the conservation status of certain species on the ground, particularly where conservation status has markedly improved. It should be noted that this issue clearly does not apply to Norway and its critically endangered wolf population.

In our view, the Convention provides for many options that allow for the killing of wolves (and other strictly protected species) for multiple legitimate reasons (Box 1). These can be interpreted as covering issues related to protecting property (like livestock), protecting human safety, and responding to a wide range of the other social conflicts associated with wolves. However, none of these allow deviation from the obligation to make a real commitment to the conservation of the species in question by ensuring a population level that “corresponds to [inter alia] ecological requirements,” as demanded by Article 2 of the Convention (Trouwborst et al. 2015a, 2017b). Also, the requirement that alternatives to killing be identified – and, where available, used instead of killing – is paramount, as is the need to ensure that the cumulative effect of all actions does not jeopardize the survival of the population.

There is also the clear need for a degree of proportionality. The numbers being killed, and the threshold below which animals cannot be killed must be seen in relation to both the degree of conflict and the size of the population. It would therefore be easier for Norway, for example, to justify a more liberal wolf killing policy if the wolf population were to have a more favourable conservation status. The larger the wolf population, the more management flexibility the Convention allows. Although the Convention does not directly state how many wolves a country needs to have at a minimum, it is unlikely that maintaining a population in a permanent state of “critically endangered” (its current status on national red lists) satisfies its obligations (Trouwborst et al. 2017b).

There is also an evident need to robustly and openly document the reasoning and utility behind granting exceptions (Box 1). The current Norwegian policy documents (Klima og Miljødepartement 2016) focus very heavily on killing wolves as a means of protecting livestock. However, at least for domestic sheep, this is the one conflict for which there are a whole suite of alternative measures that can be used to prevent conflict. Furthermore, at present the extent of conflicts with livestock within the existing wolf zone is also minimal (Strand 2016; Krange et al. 2016) such that this argumentation is only really relevant for areas outside the zone. In other words, if Norway is to justify a more liberal use of exceptions to kill wolves within the wolf zone it should make the arguments associated with considering other conflicts much more explicitly. This requires an open debate about to what extent it is viewed as principally acceptable to kill wolves to manage perceptions of conflict rather than the material and economic dimensions (e.g. Ericsson et al. 2004) of conflict, and the documentation of the potential utility of this approach. This, in turn, would require a formal acceptance of the legitimacy of invoking the reduction of perceptional and social conflicts as grounds for exceptions (Linnell 2013). This question has both legal (with respect to national and international instruments) and social (public opinion within Norway) dimensions. It is of interest that the Swedish Supreme Administrative Court ruled in favour of recognizing these issues with respect to interpretation of derogations under the Habitats Directive (judgement on 30^th December 2016, cases 2406–2408-16 / 2628–2630-16).

These other conflicts are much less associated with economic losses and more linked to perceptions, being based on the idea of “tolerance hunting” (Epstein 2017). While the motivation for this has been well documented among many rural stakeholders it is likely to be highly controversial with other sectors of society. It is well known that public tolerance for hunting is linked to the motivations for hunting (Kaltenborn and Brainerd 2016). For example, hunting for meat is often more tolerated than hunting for trophies. Hunting for tolerance is likely to be especially controversial. This implies that it becomes a question of which public interests should be prioritized? Those of certain rural stakeholders or those of a wider society (both rural and urban)? This has been a central part of ongoing controversies in North American wolf management (Treves et al. 2017; Vucetich et al. 2017) and has also become apparent in Norway in recent months. It is, however, important to not confound the desire to kill wolves with an automatic anti-wolf stance (Kaltenborn et al. 2013a.b). Here we note, but do not ourselves address, the ongoing and as yet undecided debate over the compatibility of tolerance hunting with the derogation clause in Article 16 of the Habitats Directive. Whereas the Swedish Supreme Administrative Court, in the aforementioned ruling, accepted hunting as a legally viable option to increase social tolerance of wolves, Epstein (2017) has pointed out that in the absence of clear evidence that allowing hunting indeed delivers wolf conservation results, the CJEU is likely to “interpret the Habitats Directive to prohibit tolerance hunting.” Given the Court’s prior case law Epstein’s prediction may well be correct, but for present purposes we recall that the interpretation of the Bern Convention is not directly affected by this EU case law.

While there are many good arguments for being responsive to the concerns of rural stakeholders who are being asked to share their properties, neighbourhoods, and landscapes with wolves (Redpath et al. 2017) it is essential that management explicitly addresses the question of how they are balancing the concerns of the different publics within the intentions, constraints and obligations imposed by the Convention. The current Norwegian policy, which aims to have high rates of wolf killing and minimal population goals, can hardly be viewed as a reasonable attempt at balancing these interests, and certainly not as living up to the country’s obligations under the Bern Convention. As the conflict is presently playing out it is becoming increasingly clear that the main limitation to the flexibility of Norway’s wolf management is not with the Convention’s strict protection designation, but with the polarized domestic public opinion concerning the moral acceptability of different motivations for killing wolves, and especially with parliament’s attempts to set minimal population goals that do not conform to the requirements of Article 2 of the Convention (Trouwborst et al. 2017b).

Overall, for Bern Convention parties in general and for Norway in particular, the aggregate outcome of our current analysis and our prior analysis of Article 2 (Trouwborst et al. 2017b) underscores that being ambitious and strict on population targets and flexible and pragmatic on the way to achieve them may well be the best way forward for large carnivore conservation and management in the human-dominated landscapes of Europe.