Zur Vereinbarkeit jagdrechtlicher und naturschutzrelevanter Vorschriften in Deutschland mit dem Übereinkommen über die biologische Vielfalt (Biodiversitätskonvention): Eine Analyse am Beispiel des Rotwildes (Cervus elaphus Linné, 1758)

The compatibility of national hunting law in Germany with the Convention on Biological Diversity is investigated by using the methods of jurisprudence. Recognizing wildlife protection problems concerning red deer in Germany, the study gives answers to the following questions: Which legal provisions are in force to regulate the management of red deer and the demarcation of "red deer zones" in the federal state of Hesse? What is the relation between national hunting law and national nature protection law in Germany? Furthermore questions about the hierarchy of norms and the compatibility of identified hunting provisions with the Convention on Biological Diversity are discussed. In the federal state of Hesse most of the provisions relative to the management and demarcation of red deer zones are decrees and administrative provisions, but not part of the regional state hunting law ("Hessisches Jagdgesetz", HJG). The Implementation Act for the Convention on Biological Diversity on national level ("Vertragsgesetz zur Biodiversitä tskonvention") is of the same level as the Federal Hunting Act ("Bundesjagdgesetz", BJG) within the hierarchy of norms. In consequence of its quality as international law there is a commitment for the Federal State of Germany to get the national provisions in agreement to the international law. Red deer hunting in conjunction with the duty to care pursuant to § 1 BJG is the foundation of sustainable utilisation in accordance with the convention on biological diversity. The same applies to the designation of areas known as "red deer zones" in relationship to the in-situ conservation (Art. 8 CBD), the zones are considered as nature protection zones pursuant to Art. 8 lit. a) CBD. The protection zones are to be adapted to altered contexts. The ecosystem and habitat protection must weigh more than it weighs now in the context of red deer management. There are veterinary and legally founded imperatives for the modification of the habitat situation of red deer. Outside the red deer zones, in the "deer-free zones", deer migration behaviour must be respected and made possible. Therefore the order in the federal state hunting law of Hesse to eliminate all stags aged up to four years as defined in § 26 b Abs. 4 S. 3 HJG is not compatible with Art. 8 lit. c) CBD. The order is inconsistent with the protection and sustainable use of the species "red deer" and its hereditary factors as natural resources, regulated by the Implementation Act for the Convention on Biological Diversity. Considering the hierarchy of norms and pursuant to An. 31 of the Constitution of the Federal Republic of Germany ("Grundgesetz", GG), the above mentioned, contradictory provision under "Länder" law ceased to be operative. Therefore it is sensible to cancel § 26 b Abs. 4 S. 3 HJG.