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1.44.2.4
Biodiversity Christopher Hedley Trainee Barrister; Editor
“OceanLaw” (www.oceanlaw.net) Keywords: biodiversity, genetic diversity, sustainable use, benefit sharing, ecosystems, species protection, habitat protection Contents
1.
Introduction Glossary Biological diversity.
The variability among living organisms from all sources including, inter alia,
terrestrial, marine and other aquatic ecosystems and the ecological complexes of
which they are part. This includes diversity within species, between species and
of ecosystems. Biological resources.
Genetic resources, organisms or parts thereof, populations, or any other biotic
component of ecosystems with actual or potential use or value for humanity. Biotechnology. Any
technological application that uses biological systems, living organisms, or
derivatives thereof, to make or modify products or processes for specific use. Ecosystem.
A dynamic complex of plant, animal and micro-organism communities and their
non-living environment interacting as a functional unit. Ex-situ conservation.
The conservation of components of biological diversity outside their natural
habitats. Genetic material.
Any material of plant, animal, microbial or other origin containing functional
units of heredity. In-situ conservation.
The conservation of ecosystems and natural habitats and the maintenance and
recovery of viable populations of species in their natural surroundings and, in
the case of domesticated or cultivated species, in the surroundings where they
have developed their distinctive properties. Protected area.
A geographically defined area which is designated or regulated and managed to
achieve specific conservation objectives. Sustainable use.
The use of components of biological diversity in a way and at a rate that does
not lead to the long-term decline of biological diversity, thereby maintaining
its potential to meet the needs and aspirations of present and future
generations. Transfer of technology.
The
transfer of systematic knowledge for the manufacture of a product or for the
application of a process. Summary
The
international law on biodiversity is primarily contained in a single instrument,
the Convention on Biological Diversity, which was adopted in 1992. The
Convention deals with biological diversity in all its forms and at all levels,
namely the ecosystem level, the species level and the genetic level. It seeks
not only to enable the conservation of biological diversity, but also attempts
to promote the sustainable use of the components of biological diversity and to
enable appropriate access to genetic resources and the fair and equitable
sharing of the benefits arising out of the utilization of such resources. These
measures are supported by an institutional structure and financial mechanism
designed to ensure that the objectives of the Convention can be fully realized.
1. Introduction
The
term “biological diversity” (often contracted to “biodiversity”) is
commonly used to describe the number and variety of living organisms on the
planet. In its most obvious form, it comprises the millions of species on Earth
which are the outcome of more than three billion years of evolution. However,
such a description comprises just one component of biological diversity, which
is more accurately and conveniently described in terms of three levels:
·
ecosystem diversity: i.e., the
variety and frequency of different ecosystems;
·
species diversity: i.e., the
frequency and diversity of different species;
·
genetic diversity: i.e., the
frequency and diversity of different genes and/or genomes. Thus biological diversity includes not only the millions of species on Earth (diversity between species) but also diversity within individual species and diversity of the ecosystems in which they exist. In short, it may be considered a synonym for “life on Earth” in all its various forms. Over the past few decades, there has been a growing recognition of the importance of biological and genetic resources to the world’s economic and social development and, as a result, a growing recognition of the need to protect biological diversity, as an asset of enormous value to present and future generations. This led, particularly during the 1970s, to the adoption of various international instruments designed to protect particular species or habitats, or other specific elements of biological diversity, usually on a regional basis, but there was no instrument, of global application, which sought to address the protection of biological diversity in its own right. It was against this background that, in the early 1980s, various governments and international organizations began to consider the idea of a global agreement on biological diversity. This is reflected, in particular, in two non-binding instruments adopted at this time: the World Charter for Nature, adopted formally in 1982 as a Resolution of the United Nations General Assembly (Resolution 37/7) and providing for, inter alia, the maintenance of the “genetic viability” of the earth and the conservation of unique areas, representative samples of ecosystems and habitats of rare or endangered species; and the Undertaking on Plant Genetic Resources, adopted by the Food and Agriculture Organization (FAO) in 1983, which sought to ensure that plant resources should be explored, preserved, evaluated and made available for plant-breeding and scientific purposes. In 1987, the issue was taken up by the United Nations Environment Programme (UNEP), which convened an Ad Hoc Working Group of Experts on Biological Diversity in the following year. Shortly after, in May 1989, it established the Ad Hoc Working Group of Technical and Legal Experts to prepare an international legal instrument for the conservation and sustainable use of biological diversity. Originally, the Working Group concentrated on designing an instrument to address conservation of biological diversity, but during its discussions it soon became apparent that many States were not prepared to consider conservation aspects only, and the scope of the proposed convention was widened to include other aspects, such as sustainable use of biological diversity and the fair and equitable sharing of benefits arising from the use of biological resources, including the need to share costs and benefits between developed and developing countries and means to support innovation by local people. By February 1991, the Ad Hoc Working Group had become formalized as the Intergovernmental Negotiating Committee, in which seventy States participated and which culminated in May 1992 with adoption of an agreed text at an international conference in Nairobi. The Convention was opened for signature a few days later, on 5 June 1992, at the United Nations Conference on Environment and Development (UNCED or the Rio “Earth Summit”). It remained open for signature until 4 June 1993, by which time it had received 168 signatures, a considerable total for an international agreement. The Convention entered into force on 29 December 1993, which was 90 days after the 30th ratification. As of 1 June 2001, the Convention had 180 parties – representing the vast majority of the world’s countries.
2.
General principles
The basic philosophy of the
Convention on Biological Diversity rests not on the need to protect particular
species or habitats that might be endangered or threatened, but on the need to
protect biological diversity, in all its forms, in its own right. This is an
important innovation in the Convention, as it is the first international
instrument to recognize the intrinsic value of biological diversity and acknowledge the inherent
right of all components of biological diversity to exist independent of their
value to humans. Based on this philosophy, the basic objectives of the Convention
are the
conservation of biological diversity, the sustainable use of its components and
the fair and equitable sharing of the benefits arising out of the utilization of
genetic resources. As indicated above therefore, the Convention is concerned not
only with conservation, but also sustainable use and the sharing of
benefits. These are objectives which reflect a careful political balance upon
which the Convention is founded. From the beginning it is important to understand the nature of the Convention, which is essentially a framework agreement that seeks to provide a basic structure for action at the national and international levels, but does not, in general, seek to elaborate detailed or specific measures for the protection of particular elements of biological diversity. This is reinforced by the opening Articles of the Convention, which confirm the sovereign rights of States, in accordance with international law, to exploit their own resources. Thus, for areas within the limits of its national jurisdiction, a State can determine rules for the areas in question and the resources found there, such as the components of biological diversity, and can also regulate all processes and activities occurring therein (subject to the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction) - whether by their nationals or by nationals of third States. Beyond national jurisdiction, of course, a State has only the power to regulate the activities of its nationals and conservation and other measures require international cooperation. Thus, the Convention also provides that, for areas beyond national jurisdiction, each party is, as far as possible and as appropriate, cooperate with other parties, either directly or through international organizations on matters of mutual interest, for the conservation and sustainable use of biological diversity.
3.
Conservation and sustainable use of biological diversity
The Convention contains a series
of wide-ranging, but rather vaguely expressed, obligations related to the
conservation of biological diversity and the sustainable use of its components.
Taken together, these measures, many of which are already reflected in existing
conservation treaties, do take a broad and comprehensive view of what
constitutes conservation and sustainable use, although they are left to
individual States to implement “as far as possible and as appropriate.” They
require action at the national level and the international level, although the
emphasis is on the former. Thus, in setting out general measures for
conservation and sustainable use, the Convention requires parties
to: ·
develop national strategies, plans or programmes for the conservation
and sustainable use of biological diversity or adapt for this purpose existing
strategies, plans or programmes based on the measures in the Convention; and ·
integrate, as far as possible and as appropriate, the conservation and
sustainable use of biological diversity into relevant sectoral or cross-sectoral
plans, programmes and policies. The general measures outlined above are supplemented by further general
measures designed to ensure that activities undertaken by the parties are based
on good science. Thus parties are to identify and monitor components of
biological diversity, paying particular attention to those requiring urgent conservation
measures and those which offer the greatest potential for sustainable use.
Processes and categories of activities which may have a significant adverse
impact on conservation and sustainable use are also to be identified and
monitored. For the purposes of identification, parties are to have regard to an
indicative list of biological diversity components listed in an Annex to the
Convention. These are categorized in terms of species and habitats; species and
communities; and described genes and genomes (corresponding to the three levels
of biological diversity outlined above). Within these categories, the Annex
provides that parties are to have regard to factors such as: distinctiveness,
richness, economic and cultural importance or potential and the extent to which
they are threatened. The Convention also requires
parties to promote international technical and scientific cooperation in the
field of conservation and sustainable use of biological diversity. To this end,
and as was directed by the Convention, the first Conference of the Parties
established a clearing-house mechanism (CHM) to promote and facilitate technical and
scientific cooperation. The parties
are also to encourage and develop methods of cooperation for the development and
use of technologies, including indigenous and traditional technologies, and,
subject to mutual agreement, promote the establishment of joint research
programmes and joint ventures for the development of relevant technologies. 3.1
In-situ conservation
Within this general framework,
the Convention outlines two specific methods for the conservation of biological
diversity: in-situ conservation, i.e. the conservation of components of
biological diversity within their natural (or semi-natural) habitats; and ex-situ
conservation, i.e. the conservation of components of biological diversity outside their
natural habitats, for example in zoos, aquaria, botanic gardens or
germplasm banks. Both are essential aspects of conserving and managing
biological diversity, although a primary importance needs to be attached to in-situ
conservation. This is because, inter alia, in-situ
conservation maintains not only a variety’s genetic diversity but also the
evolutionary interactions which, for example, allow it to adapt continually to
shifting environmental conditions. The primary importance of in-situ
conservation is recognized by the Convention, which sets out a long list of
measures to be taken for the in-situ conservation of biological
diversity. Many of these measures are already reflected in existing conservation
treaties, although the Convention on Biological Diversity is the only instrument
to set out all of the elements together and does also contain some measures not
previously addressed. The range of measures relating to in-situ
conservation include, inter alia: ·
establishment of a system of protected areas or areas where
special measures need to be taken to conserve biological diversity; ·
development of guidelines for the selection, establishment and
management of protected areas or areas where special measures need to be taken
to conserve biological diversity; ·
regulation or management of biological resources important for the
conservation of biological diversity whether within or outside protected areas,
with a view to ensuring their conservation and sustainable use; ·
protection of ecosystems, natural habitats and the maintenance of viable
populations of species in natural surroundings; ·
promotion of environmentally sound and sustainable development in areas
adjacent to protected areas with a view to furthering protection of these areas; ·
rehabilitation and restoration of degraded ecosystems and threatened
species; ·
establishment or maintenance of means to regulate, manage or
control the risks associated with the use and release of living modified
organisms resulting from biotechnology; ·
control or eradication (including introductions) of alien species which
threaten ecosystems, habitats or species; ·
subject to national legislation, the respect, preservation and
maintenance of knowledge, innovations and practices of indigenous and local
communities relevant for the conservation and sustainable use of biological
diversity and the promotion of their wider application with the approval and
involvement of the holders of such knowledge, innovations and practices ·
encouraging the equitable sharing of the benefits arising from the
utilization of indigenous knowledge, innovations and practices; and ·
development or maintenance of relevant legislation, regulatory
provisions and conservation processes. It is clear from the above description of
measures that protected areas are to form a central (but not exclusive) element
of national strategies to conserve biological diversity under the Convention.
Furthermore, the fact that the Convention refers to a “system” of protected
areas implies that the designation and establishment of such areas in a
country or region should be approached in a coherent way, and together should
form a network, in which the various components conserve different portions of
biological diversity. Globally, it is in fact the case that great importance is
attached to such areas as a means to conserve biological diversity. According to
the World Resources Institute, for example, which monitors the Convention on
Biological Diversity, there are more than 8,000 protected areas worldwide,
covering more than 750 million hectares of marine and terrestrial ecosystems
(amounting to 1.5 percent of Earth’s surface or 5.1 percent of national land
area). These areas are managed for various objectives, ranging from strict
nature preservation to controlled resource harvesting. Of particular note is the
so-called “Habitats Directive” in the European Community (EC), which is
designed to establish a comprehensive network of protected areas aimed at
ensuring the maintenance of threatened species and habitat types throughout the
Member States of the EC. It is doubtful, however, whether, in most cases, the
establishment of such protected areas can be directly attributed to the
Convention on Biological Diversity to any great extent. The EC “Habitats
Directive”, for example, was developed prior to the adoption of the Convention
on Biological Diversity and was essentially designed to implement the 1979 Bern
Convention for the Conservation of
European Wildlife and Habitats (see
Endangered Species).
3.2
Ex-situ conservation
While the importance of in-situ
conservation cannot be overemphasized, ex-situ conservation is an
important complement to in-situ techniques. In particular, it has a role
to play where, as is the case in some regions, the threats to the survival of
biological diversity are so severe that there is no real prospect for their in-situ
maintenance in the long term. Ex-situ conservation may also serve a
number of other purposes, for example by providing educational and public
awareness services or serving as sites for basic and applied research.
Recognizing these aspects, the Convention requires each party,
as
far as possible and as appropriate, and predominantly for the purpose of
complementing in-situ measures, to: ·
adopt measures for the ex-situ conservation of components of
biological diversity, preferably in the country of origin of such components;
·
establish and maintain facilities for ex-situ conservation of and
research on plants, animals and micro-organisms, preferably in the country of
origin of genetic resources; ·
adopt measures for the recovery and rehabilitation of threatened species
and for their reintroduction into their natural habitats under appropriate
conditions; · regulate and manage collection of biological resources from natural habitats for ex-situ conservation purposes so as not to threaten ecosystems and in-situ populations of species;
·
cooperate in providing financial and other support for ex-situ
conservation measures and in the establishment and maintenance of ex-situ
conservation facilities in developing countries. The Convention elaborates a number of
methods to support the implementation of conservation (both in-situ and ex-situ)
measures. These methods place an emphasis on action at the national level,
although international cooperation is also envisaged. Thus, each party is to
adopt, as far as possible and as appropriate, economically and socially sound
measures that act as incentives for the conservation and sustainable use of
components of biological diversity; to establish scientific and technical
education and training and to promote and encourage research which contributes
to the conservation and sustainable use of biological diversity, particularly in
developing countries; to promote and encourage public education and awareness,
both nationally and in cooperation with other States and international
organizations; and are to introduce appropriate procedures requiring
environmental impact assessment of proposed projects and contingency measures
for emergency situations, in support of national decision-making. 3.3
Sustainable use of biological diversity
In a sense, the sustainable use
of biological diversity is a component of conservation. It requires that where use
is made of components of biological diversity, whether consumptively or
non-consumptively, it must be in a manner and at a rate that does not lead to
the long-term decline of such diversity. In this manner, as the Convention
states, the potential of the resource to meet the needs and aspirations of
present and future generations should be maintained. Although the point is not
obvious in the Convention text, sustainable use needs to address not only, for
example, the sustainable exploitation of a particular species, but also the
conservation of related or associated species. As with the measures on
conservation a list of measures is set out, providing the basic framework
for action by the parties. Thus, each party, as far as possible and as appropriate, is to: ·
integrate consideration of the conservation and sustainable use of
biological resources into national decision-making; ·
adopt measures relating to the use of biological resources to avoid or
minimize adverse impacts on biological diversity; ·
protect and encourage customary use of biological resources in
accordance with traditional cultural practices that are compatible with
conservation or sustainable use requirements; · support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced; and · encourage cooperation between its governmental authorities and its private sector in developing methods for sustainable use of biological resources.
4.
Access to genetic resources and the sharing of benefits
In addition to setting out measures on the conservation
and sustainable use of biological diversity, the Convention also addresses the
important issues of access to genetic resources and the sharing of the benefits
arising out of the commercial and other utilization of genetic material. The
issues are important because most of the world’s biological diversity and
genetic material is found in developing countries, which consider such resources
as important for promoting their economic and social development. On the other
hand, it is mainly in the developed countries that genetic resources are
collected for commercial use, including the development of new commercial
products, such as pharmaceuticals. Considerable value is added to the genetic
materials in this manner, which are then sold by the companies concerned and
protected by patents or other intellectual property rights, without significant
benefits accruing to the source countries. Not surprisingly, therefore, this
part of the Convention was perhaps the most difficult and controversial part to
negotiate. As regards access to genetic resources, the Convention begins by
reiterating the sovereign rights of States over their natural resources and, as a
function of this, provides that the authority to determine access to genetic
resources rests with the national governments and is subject to national
legislation. This provision may seem unremarkable, but until the negotiation of
the Convention, the principle of free access to genetic resources (or at least
for plant genetic resources) had prevailed. Although not enunciated in any
legally binding instruments, there appeared to be general international
acceptance that genetic resources belonged to the common heritage of mankind and
should be freely available to all. This notion was reflected in the 1983 FAO
Undertaking on Plant Genetic Resources, which, although a non-binding
instrument, was adhered to by a considerable number of States. However, starting
in the 1980s, several countries began to restrict access to their genetic
resources and developing countries began seeking greater authority over their
own resources on the basis that there was no legal reason to exempt genetic
resources from the general principle of national sovereignty over natural
resources. As can be seen, this view ultimately prevailed in the Convention
text. The Convention, therefore, gives the
country hosting the genetic resources the authority to control access to the
resources in question. In order to enable access, however, the Convention urges
each party to “endeavour” to create conditions to facilitate access to
genetic resources for environmentally sound uses. Such access is to be on
mutually agreed terms between the parties concerned. It can be seen from these
provisions, that the Convention gives a considerable priority to the country
providing the genetic resources, since the authority to grant access rests with
that State and then only on terms to which it agrees. The country of origin is
restricted only by a requirement in the Convention not to impose restrictions
that run counter to the objectives of the Convention and, presumably, general
principles of international law relating to good faith in the exercise of
negotiations. To date, however, few countries have enacted regulations in
response to the provisions concerning access to genetic resources, although a
significant number of States are apparently in the process of enacting such
legislation. The Convention also contains a number of measures which address the issue
of redistribution of benefits derived from the use of genetic material.
Thus, in general each party is to endeavour to develop and carry out scientific research based on genetic
resources provided by other parties with the full participation of, and where
possible in, the latter. Each party is also to take measures with the aim
of the fair and equitable sharing of research and development results and
commercial and other benefits arising from the utilization of the resources.
Similar provisions are set out in relation to the distribution of benefits of
biotechnological research. Possibly the most controversial aspect of the entire Convention, however,
is the section dealing with access to and transfer of technology.
Transfer of technology provisions in other treaties, such as in the 1982 United
Nations Convention on the Law of the Sea, have usually also been controversial,
for a number of reasons. First, governments are generally reluctant to compel
companies and private parties to transfer technologies that may not be
commercially available; second, there have been objections to the terms on which
transfers are to take place, particularly if this is not at market prices; and
third, there is the complicated question of intellectual property rights, which
may be lost or weakened if transfer is required. During the negotiations for the
Convention, these concerns were prominent and a number of States – primarily
developed countries – were reluctant to include any provisions on the transfer
of technology in the Convention text. However, other negotiating countries -
mainly developing countries – considered the transfer of technology to be an
essential element of the Convention, particularly as a counterpart to the
provisions related to access to and distribution of benefits from genetic
resources. Ultimately the latter position prevailed, although the issue of
transfer of technology remained controversial throughout the negotiations and
what resulted were rather complex and ambiguous provisions in the Convention
which leave room for varying interpretations. These provisions have continued to
cause interpretational difficulties in Convention meetings subsequent to its
entry into force. Under the Convention, each party is to
undertake to provide and/or facilitate access for and transfer to other parties
of: technologies that are relevant to the conservation and sustainable use of
biological diversity; and technologies that make use of genetic resources. The
technologies concerned must not cause significant damage to the environment. As
regards developing countries, such access and transfer is to be provided and/or
facilitated under “fair and most favourable” terms, including on
concessional and preferential terms, subject to the agreement of the parties
concerned. Each party is also to take measures with the aims that: (i) parties,
in particular developing countries, which provide genetic resources are provided
access to and transfer of technology which makes use of those resources, on
mutually agreed terms; and (ii) the private sector facilitates access to, joint
development and transfer of technology for the benefit of both governmental
institutions and the private sector of developing countries. In the case of
technology subject to patents and other intellectual property rights, the
Convention provides that terms of access and transfer must recognize and be
consistent with the protection of such rights but also requires parties to
cooperate, subject to national legislation and international law, in order to
ensure that such rights are supportive of and do not run counter to its
objectives. This appears to be an attempt to satisfy both sides – intellectual
property rights are to be respected but only insofar as they support rather than
hinder the objectives of the Convention – but leaves open a number of
questions, particularly concerning the scope of intellectual property rights and
whether they benefit the providers of resources or only those which make use of
them. 5.
Institutional mechanism
The main body established by the Convention to
supervise
its implementation is the Conference of the Parties (CoP), which meets
ordinarily every two years. Composed of representatives from each party, the
main functions of the CoP are to: As indicated, the Convention also
establishes a Subsidiary
Body on Scientific, Technical and Technological Advice (SBSTTA). The
purpose of the SBSTTA is to provide advice relating to the implementation of the
Convention and it plays an important and central role in the Convention
framework. Specifically, its functions are to: provide scientific and technical
assessments of the status of biological diversity; prepare scientific and
technical assessments of measures taken to protection biological diversity;
identify and advise on the promotion of technologies relating to the
conservation and sustainable use of biological diversity; provide advice on
scientific programmes and international cooperation in research and development;
and respond to questions that may be put to it by the CoP and other subsidiary
bodies. The work and functions of the SBSTTA are subject to the direction of the
CoP. Another important function of the CoP is to administer the
Convention’s financial mechanism. The Convention provides in general that each party
is to provide, in accordance with its capabilities, financial support and
incentives in respect of national activities related to the conservation of
biological diversity. In addition, however, the Convention contains a number of
provisions designed to ensure the flow of financial resources from developed
countries to developing countries. In particular, the developed country parties
are required to provide “new and additional” financial resources to enable
developing country parties to meet the “agreed full incremental costs” to
them of implementing measures under the Convention and to benefit from its
provisions. (Although neither term is defined in the Convention, “new
and additional” is taken to mean funds additional to existing bilateral and
multilateral funds, and “incremental cost” is a theoretical concept
which in general represents the extra cost incurred by a party in implementing a
particular action in order to fulfil a treaty obligation, compared to the cost
of another action which the party would have taken had it not been a party to
the treaty). The Convention establishes
a financial mechanism to make these and other funds available to developing
country parties in order to enable them to implement the provisions of the
Convention. The funds can be made available on a grant or concessional basis
(i.e. funds can be provided outright or loaned at preferential interest rates).
The
mechanism
functions under the authority and guidance of, and is accountable to, the CoP,
although in practice the mechanism has been administered (as envisaged by the
Convention) by the Global Environment Facility, as an interim measure.
Nevertheless, the CoP has played an important role since the beginning and has
determined the policy, strategy and programme priorities for the financial
mechanism. As also indicated, the Convention empowers the CoP to establish other
subsidiary bodies and cooperate with other organizations as necessary, and these
are powers (or duties) that have been exercised on a number of occasions. Thus
either under its own initiative or in conjunction with other bodies, a large
number of Working Groups (such as the Working Groups on Access and Benefit
Sharing and on Article 8(j), dealing with in-situ conservation and
indigenous peoples), Workshops, Technical Expert Groups and Meetings of Experts
have been established or organized, dealing with a wide range of matters under
the Convention. Finally, it should be noted that the
Convention also establishes a Secretariat to carry out various administrative
and executive duties.
5.1
Settlement of disputes
The Convention establishes a mechanism for the settlement of disputes
that might arise between parties concerning the interpretation or application of
the Convention. In the first place, the parties are to enter into negotiations
to settle their dispute, and thereafter, if negotiations prove unsuccessful, to
seek the good offices of, or request mediation by, a third party. If such
attempts also prove unsuccessful, then the Convention provides a choice of
procedures for the parties. Thus, when ratifying or acceding to the Convention,
or at any time thereafter, a party may declare that it accepts, as
compulsory, either submission of the dispute to the International Court of
Justice or arbitration. As regards the latter, the Convention provides a
procedure for the establishment of an arbitral tribunal which may recommend
essential interim measures of protection and, ultimately, make an award which is
binding on the parties to the dispute.
If
the parties to a particular dispute have not, however, accepted the same
procedure, or (as is the situation in most cases) not accepted a procedure at
all, then the Convention provides for the creation of a conciliation commission
which is empowered to render a proposal for resolution of the dispute, which the
parties must consider in good faith, but cannot render a binding decision.
6.
Other instruments
Although the Convention on
Biological Diversity is the principal instrument relating to the conservation
and sustainable use of biological diversity, and, indeed, the only instrument
which seeks directly to protect biological diversity in its own right and on a
global scale, there were, at the time of
its negotiation, a number of existing international agreements concerned with
particular aspects of conservation and other subjects relevant to the
Convention. Although none of these agreements refers to the concept of
biological diversity, they clearly contribute to its conservation and
sustainable use. Together with the Convention, they form the regime
applicable to biological diversity. Taking the broadest view, these instruments
comprise hundreds of bilateral and multilateral instruments designed in some way
to conserve or sustainably use some component of biological diversity, such as
fisheries or agriculture. Of more direct concern are the various international
instruments designed to protect endangered species of fauna and flora. In
particular, attention should be drawn to four major instruments of global
application. First, the Convention on
the Conservation of Migratory Species of Wild Animals, 1979, which provides a
global framework to conserve threatened migratory species and their
habitat. The Convention requires the adoption of strict conservation measures to
protect certain species listed under the Convention as being endangered and
requires the adoption of further agreements to conserve and manage migratory
species whose conservation status is unfavourable or which would significantly
benefit from international cooperation. Several such agreements have been
concluded. Second, the Convention on International Trade in Endangered Species of Wild Fauna
and Flora, 1973 (known as “CITES”), which seeks to regulate
international trade in endangered or threatened species. The strength of
controls vary according to whether the species are considered to be threatened
with extinction, for which trade is prohibited; or to be not yet threatened with
extinction, but which may become so unless their trade is subject to strict
international controls, for which trade is subject to certain controls. (For
further information on these two instruments, see
Endangered Species). Third, the Convention on Wetlands
of International Importance Especially as Waterfowl Habitat, 1971 (known as the
RAMSAR Convention), which requires each party to promote the conservation
of internationally important wetlands and the prudent use of all wetlands within
its territory. Conservation measures are to be established in wetland areas to
promote wetland and waterfowl conservation. Finally, mention should be made of
the Convention Concerning the Protection
of the World Cultural and Natural Heritage, 1972. The “World Heritage
Convention” requires parties to take steps to identify, protect, conserve,
present and transmit to future generations the cultural and natural heritage
within their territories. Cultural and natural areas of outstanding universal
value are eligible for listing on the World Heritage List and the Convention
establishes the World Heritage Fund which can be used by the World Heritage
Committee to assist countries with establishing and conserving World Heritage
Sites. As is usual in international agreements, the Convention on Biological Diversity specifies the relationship between itself and existing international treaties. The purpose of such provisions is to specify whether and to what extent a new treaty affects the obligations deriving from older treaties and helps avoid post facto discussions on the intentions of the parties. Without such a paragraph, the newer obligations might easily be interpreted as prevailing on the assumption that, by adopting new rules on a particular subject, it was the intention of the negotiators to change existing rules. Thus, the Convention provides that its provisions shall not affect the rights and obligations of any party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity. The Convention also provides in particular that with respect to the marine environment, the parties shall implement the Convention consistently with the rights and obligations of States under the law of the sea, i.e. customary international law and the United Nations Convention on the Law of the Sea, 1982 (see Marine Issues). 7.
Conclusions
It is important to assess the Convention on Biological
Diversity in realistic and pragmatic terms. Thus, it is to be understood that
the aim of the Convention is to set out a general framework, consisting of
broadly expressed measures, and not to set out a strict regime, composed of
detailed obligations. It is true, therefore, that many of the provisions in the
Convention are vaguely expressed and often subject to heavy qualification. It is
also true that, largely due to severe time constraints on negotiation because of
a desire to complete the process in time for UNCED, a number of important
articles which were in the negotiating drafts were removed from the final text.
Notable examples of such deletions include an article requiring parties to
“anticipate, prevent and attack the causes of reduction or loss of
biodiversity” and an article providing that countries responsible for
activities which damaged or threatened biological diversity would be responsible
for the costs of avoiding or remedying the damage. On the other hand, such
weakenings of the Convention text may actually be viewed as one of its
strengths. For example, it enabled the negotiators of the Convention to deal
with a much wider range of matters than would have been otherwise acceptable. It
has also meant that the Convention is acceptable to a much wider range of
States, as reflected in the high level of participation by the vast majority of
the world’s countries. The real test for the Convention, however, must be an assessment in terms of its stated objectives, namely the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. In this regard, however, it is doubtful if the Convention has so far made substantial progress. Many of the world’s important biological resources continue to be exploited at alarming rates and species continue to become extinct. Within the Convention system, there are also still many issues to be resolved, particularly relating to access to resources, the sharing of benefits and the transfer of technology. Furthermore, as has been suggested, even for those actions which have been successful in conserving biological diversity, it is not clear to what extent these can be directly attributed to the Convention. Nevertheless, the contribution of the Convention, as part of the recent corpus of international environment law, should not be underestimated. The need to protect biological diversity is becoming an increasingly common reference point in national and international strategies dealing with natural resources and biological diversity concerns are being integrated more and more into national and international policies. Furthermore, because much of the first few years of the Convention’s operation was spent elaborating institutional and procedural elements of the Convention, the effectiveness of the Convention can perhaps be expected to increase in the second decade of its operation. Bibliography
Convention on Biological
Diversity, 5 June 1992, 1995 United Kingdom Treaty Series 51, also
reproduced on the Convention on Biological Diversity website: www.biodiv.org Bowman, M. and Redgewell, C.
(1996). International law and the
conservation of biological diversity. 334 pp. The Hague; Boston: Kluwer Law International.
[Discusses all international legal and policy aspects of biological
diversity and the full range of international legal instruments dealing with the
issue, including the Convention on Biological Diversity]. Burhenne-Guilmin, F. and
Lefkowitz, (1992). The New Law of Biodiversity. Yearbook of International Environmental Law 3, 43-59. [Provides
a concise overview of relevant law]. Glowka L., Burhenne-Guilmin F.
and Synge H. (1994). A guide to the
Convention on Biological Diversity, 161 pp. Gland, Switzerland: IUCN.
[Reference guide which examines the Convention on Biological Diversity
article by article and illustrates the legal, technical and scientific issues
which the Convention raises. ; includes a detailed bibliography]. Klemm, C. de. (1993) Biological
diversity conservation and the law: legal mechanisms for conserving species and
ecosystems. 292 pp. Gland, Switzerland: IUCN.
[Covers a wide-range of legal mechanisms for conserving biodiversity,
including national approaches and transboundary approaches]. Rosendal, G. K. (2000). The
Convention on Biological Diversity and developing countries.
313 pp. Dordrecht; Boston: Kluwer Academic Press.
[Provides an overview of the Convention and the progress and problems of
implementation in developing countries]. Swanson, T. M. (1999). Global
action for biodiversity:
an international framework for implementing the convention on biological
diversity. 191 pp. London: Earthscan. [Describes
the movements leading to the adoption of the Convention and the issues concerned
and sets out a series of policy prescriptions to give effect to the objectives
of the Convention]. Ten Kate, K. and Laird, S. A.
(1999). The commercial use of
biodiversity : access to genetic resources and benefit sharing.
416 pp. London: Earthscan. [Outlines
the Convention and explains the provisions on access and benefit-sharing, the
effect of national laws to implement these and a sector-by-sector analysis of
how genetic resources are used].
Thorne-Miller, B. (1999). The
living ocean: understanding and protecting marine biodiversity.
2nd ed. 214 pp. Washington, D.C.: Island Press. [Discusses various elements of this important aspect of
biological diversity]. Author Biography Christopher Hedley is a trainee barrister, specializing
in law of the sea and fisheries law, environmental law and European Union law.
He has previously held appointments as an instructor in public international law
and European Union law at Cardiff Law School, as a stagiaire at the European
Commission and has various consultancy experience. He is also the Editor of the
OceanLaw web-resource (www.oceanlaw.net) and International Fisheries Bulletin
(www.oceanlaw.net/bulletin). |