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Biodiversity All the treaties adopted in the two decades following the Stockholm Conference (that is, up until 1992) were limited in scope to particular sectors or regions. Thus implying that species, habitats and processes, which were not expressly covered by specific legal regimes, benefited from no protection. International consensus was gradually crystallised on the need to take an inclusive approach and to treat all components of biodiversity as a global resource to be conserved and sustainably used. For example, the 1980 World Conservation Strategy made some headway by defining three major conservation goals, namely: maintenance of essential ecological processes; preservation of genetic diversity (i.e. biological diversity); and sustainable use of species and ecosystems. These principles underpin the CBD. The CBD is in fact a landmark in the environment and development field, as it takes for the first time a comprehensive rather than a sectoral approach to conservation of the Earth’s biodiversity and sustainable use of biological resources. The CBD recognises the vital points made in earlier treaties and documents, that both biodiversity and biological resources should be conserved for reasons of ethics, economic benefit and indeed human survival. Further, it implicitly accepts the telling point that the environmental impact which future generations may most regret about our time is the loss of biodiversity, in part because most of it – for example, loss of species – cannot be reversed. The CBD helps define the internationally agreed definition of biodiversity. This is described as ‘the variability among living organisms from all sources including, inter alta, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are a part; this includes diversity within species, between species and of ecosystems’ (Article 2). The definition makes no distinction between wild and domesticated animals, wild and cultivated plants, land and sea or areas under or beyond national sovereignty or jurisdiction. Biodiversity, according to the CBD, therefore functions as an all-embracing concept providing a common frame of reference for the development of appropriate forms of management by all countries. Further, the CBD goes beyond the conservation of biodiversity and sustainable use of biological resources, to encompass such issues as access to genetic resources, sharing of benefits from the use of genetic material and access to technology, including biotechnology. §
Character of the
Convention With the emergence of an ethos of sustainable management, modern legal instruments have been made increasing use of in framing treaties of this nature. This approach leaves Parties free to choose how to meet prescribed objectives or obligations. Strategies are likely to include combinations of regulatory (command and control) systems, incentives, private property mechanisms, economic instruments (market based incentives) and other policy instruments as well as increased public consultation and involvement. Reflecting this, the CBD has expressly broadened the scope of conservation obligations beyond species and area related measures to cover the identification and management of destructive activities and processes, which may adversely, affect biodiversity. Whereas multidisciplinary cooperation for conservation objectives is already implicit in some earlier instruments, the CBD makes cross-sectoral planning and, where necessary, modification of harmful sectoral policies a primary obligation of Contracting Parties. In practice, this implies that biodiversity related issues can no longer be treated as the province of conservation departments – the objectives and requirements of the CBD are binding on all areas of public administration in those states which have become Party to the CBD. The CBD does however leave it up to individual Parties to determine how its provisions are to be implemented. This is because its provisions are mostly expressed as overall goals and policies rather than as hard and precise obligations as in, for example, CITES. Nor does it tend to set targets, as does, for example, the European Council Directive on the Protection of Natural and Semi-natural Habitats of Wild Flora and Fauna, which lists hundreds of species that should be brought back to ‘satisfactory levels’. Instead the emphasis in the CBD is to place the main decision-making at the national level. The CBD sets out commitments for maintaining the world’s ecological underpinnings as we go about the business of economic development. The main objectives of the CBD are ‘conservation, sustainable use and equitable benefit sharing’, thus implying that the ecological and economical values of biodiversity are recognised. Conservation is essentially of two kinds, in situ and ex situ. In situ is conservation under natural conditions. This focuses on conserving genes, species and ecosystems in their natural surroundings, for example, by establishing protected areas, rehabilitating degraded ecosystems and adopting legislation to protect threatened species. Ex situ is outside natural conditions. This form of conservation uses zoos, botanical gardens and gene banks to conserve species. It encourages participation of the public and non-governmental organisations in the process. Sustainable use is another principle reflected under the CBD. Equitable benefit sharing from the use of genetic resources envisages cooperation between countries. Benefits arising from the use of a genetic resource are shared between the source country and anybody involved in the process, like for example, local communities. All three goals are to be satisfied either through existing or new national policies and laws. With regard to the provisions on conservation and sustainable use, the focus on action at the national level is emphasised by two crucial articles – Article 1 which sets out the CBD’s objectives, including the conservation of biodiversity and the sustainable use of its components, and Article 6 which requires each Party to develop national strategies, plans or programmes for conservation of biodiversity and sustainable use of biological resources. The latter articles set out the policies to be followed. Article 8 sets out the major policies for effective in situ conservation of biodiversity, giving Parties a set of goals against which to match their own laws and policies. Article 9 does the same for ex situ conservation, Article 10 for sustainable use of biological resources and Article 14 for environmental impact assessment. These goals are buttressed by other commitments on research and training (Article 12) and on education and awareness (Article 13). The articles on access to genetic resources (Article 15) and access to and transfer of technology (Article 16) leave much to each Contracting Party to decide regarding their implementation. The financial articles are Articles 20, 21 and 39. §
Issues Covered
by the CBD The CBD can be hailed as a landmark from several points of view. It is the first time that biodiversity, as such, is comprehensively addressed, and the first time that genetic diversity is specifically covered in a binding global treaty. It is also the first time that the conservation of biodiversity is recognised as ‘the common concern of humankind’. Further, by including issues of access and use of genetic resources, as well as technology transfer and biosafety, the CBD demonstrates a will to address all aspects of biodiversity. The CBD also recognises that biodiversity is unevenly distributed around the globe. The North, being biologically poorer, has depleted its biodiversity reserves over time, but such reserves are still found in the biologically rich South. If biodiversity is to be conserved, this imposes a heavier burden on the South, at a time when the use of biological resources is of paramount importance for developing countries in achieving development. The CBD recognises that this burden can only be alleviated by additional contributions from the industrialised North and through increased partnership between both developed and developing countries. Hence, by creating a mechanism to provide funds to developing countries to help them implement the CBD, the need for new and additional resources to flow from the North to the South is addressed. §
Analysis of the
Major Issues of the CBD An analysis of the major issues brought to light by the CBD are given as below. National Sovereignty and the Common Concern of Humankind The proposition that biodiversity should be considered as the ‘common heritage’ of humankind was rejected at an early stage, since most components of biodiversity are situated in areas under national jurisdiction. Instead; a firm emphasis was placed on sovereign rights over biological resources, while recognising that the conservation of biodiversity is a ‘common concern’ of humankind. ‘Common concern’ implies a common responsibility to the issue based on its paramount importance to the international community as a whole. The sovereign rights of States over their natural resources is referred to in the preamble and twice in the main text of the CBD. Article 3 reproduces verbatim Principle 21 of the Stockholm Declaration, recognising that States have the sovereign right to exploit their own resources pursuant to their own environmental policies. This however, remains subject to international conditions, like, not causing transboundary environmental harm and so forth. Article 15, on access to genetic resources, again recalls the sovereign rights of States over their natural resources as a basis for the authority to determine access to genetic resources. The CBD also places emphasis on the responsibilities of States towards biological resources within their jurisdiction. The preamble makes it clear that States are responsible for conserving their biodiversity and for using the biological resources constituting this biodiversity in a sustainable manner. This is also emphasised by the acceptance of detailed responsibilities and obligations on these matters, as for instance in Article 6 (General Measures for Conservation and Sustainable Use), Article 8 (In situ Conservation) and Article 10 (Sustainable Use of Components of Biological Diversity). As an extension of the sovereignty aspect, the CBD makes it mandatory for a state accessing biological resources, to obtain the prior informed consent of the state having sovereign rights over its resources. For example, in 1995, the Philippines required bioprospectors to get ‘prior informed consent’ from both the government and local communities. Conservation and Sustainable Use The CBD contains a series of far-reaching obligations related to the conservation of biodiversity and sustainable use of its components. These obligations are to develop national strategies and plans, to integrate the conservation and sustainable use of biodiversity into relevant sectoral or cross-sectoral plans, programmes and policies, as well as into national decision-making (Articles 6 and 10). Each Party undertakes to identify important priorities which may need special conservation measures, or which may offer the greatest potential for sustainable use. Processes and categories of activities which may have significant adverse effects on conservation and use are also to be identified and monitored (Article 7). Emphasis is given to in situ conservation with obligations which constitute a comprehensive agenda, and call for measures ranging from the establishment of a system of protected areas to the rehabilitation of degraded ecosystems and recovery of threatened species, the protection of natural habitats and the maintenance of viable populations of species in natural surroundings (Article 8). Ex situ conservation measures are also called for, principally to complement the in situ measures (Article 9). Obligations on the sustainable use of biological resources are interwoven into a number of articles, and are also the specific subject of Article 10. Parties undertake to regulate or manage biological resources for conservation and sustainable use and to encourage the development of methods for sustainable use. The role of indigenous and local communities in conserving biodiversity is recognised in the preamble; the importance of maintaining their knowledge and practices relevant to the conservation of biodiversity and the sustainable use of its components is also recognised, as is the need to encourage equitable sharing of benefits derived from the use of their knowledge and innovations (Article 8(j) and Article 10(c)). Finally, measures for research and training (Article 12) and for public education and awareness (Article 13) are required. So to is the use of techniques, such as impact assessment (Article 14(1)(a) and (b)) and contingency measures for emergency situations, in support of national decision-making (Article 14(1)(c)-(e)). Hence, it may be gleaned that the CBD does justice to modern conservation thinking. Not only does it consistently recognise that sustainable use of living resources and the ecosystems of which they are a part is a prerequisite for biodiversity conservation, it also acknowledges the need for certain components to be given special care and treatment. Thus, the provisions on conservation and sustainable use reflect the full spectrum of measures needed to achieve the overall goal of the CBD. Through attention paid to the components of biodiversity, the CBD addresses the causes rather than the symptoms of the loss of biodiversity, while at the same time becoming a major instrument in the context of sustainable development. This comprehensive approach, beyond biodiversity per se, makes the CBD important to all States, not only those particularly rich in biodiversity. The need to differentiate between the capabilities of developed and developing country Parties is also recognised by the CBD. As far as obligations under the CBD are concerned, most of the articles have been prefaced by phrases limiting their application. The purpose of most qualifiers is to make the level of implementation commensurate to the capacities of each Party to meet the obligation at hand. At times, explicit distinctions are made between what is expected from developed and developing country Parties, as in, for example, Article 20 on financial resources. The emphasis on national action and priority setting is desirable from several points of view. First, it is at the national and sub-national levels that biodiversity can effectively be conserved and biological resources efficiently managed. Second, States are more likely to adhere to priorities developed at the national level, rather than to ones established with mainly global concerns in mind. Third, the conservation of biodiversity and the sustainable use of biological resources is so complex and so multi-faceted an issue that the exact tasks can only be determined and carried out at the national, or indeed local, level. Of all environmental problems, it is probably the least amenable to top-down solutions. Many examples exist of initiatives undertaken that integrate the objectives of conservation and sustainable development. Some of the prominent examples are as follows. - In 1994, Uganda adopted a programme under which protected wildlife areas shared part of their tourism revenues with local people. This approach is now being used in several African countries. - In recognition of the environmental services that forests provide to the nation, Costa Rica's 1996 Forestry Law includes provisions to compensate private landowners and forest managers who maintain or increase the area of forest within their properties. - In different parts of the world, farmers are raising crops within mixed ecosystems. In Mexico, they are growing ‘shade coffee’, putting coffee trees in a mixed tropical forest rather than in monoculture plantations that reduce biodiversity. These farmers then rely entirely on natural predators common to an intact ecosystem rather than on chemical pesticides. - Sian Ka’an Biosphere Reserve in Mexico has great cultural value with its 23 recorded Mayan and other archaeological sites while also being the home of some 800 people, mainly of Mayan descent. The reserve forms part of the extensive barrier reef system along the eastern coastline of Central America and includes coastal dunes, mangroves, marshes and inundated and upland forests. The inclusion of local people in its management helps maintain the balance between pure conservation and the need for sustainable use of resources by the local community. Access Issues Until the negotiation of the CBD, the principle of free access to genetic resources had prevailed and is recognised in the FAO Undertaking on Plant Genetic Resources of 1983, which, however, in the context of a mounting controversy over genetic resources control, has remained a non-binding instrument. Since the early 1980s, several countries restricted access to genetic resources under their jurisdiction. As a result, in the CBD, Article 15 recognises that the authority to determine access to genetic resources rests with national governments and is subject to national legislation. This evolution is based on the view that there is no legal reason to exempt genetic resources. But it is also grounded in practical reasoning – control over access to genetic resources gives the providing Party the opportunity to negotiate the mutually agreed terms for fair and equitable sharing of benefits required by Article 15(7). For example, countries of the Andean Pact (Colombia, Ecuador, Peru, Bolivia and Venezuela) have adopted laws and measures to regulate access to their genetic resources. The bioprospector is required to meet certain conditions, such as the submission of duplicate samples of genetic resources collected to a designated institution; including a national institution in the collection of genetic resources; sharing existing information; sharing research results with the competent national authority; assisting in the strengthening of institutional capacities; and sharing specific financial or related benefits. Further, following the national orientation of the CBD, Articles 15, 16 and 19 require that access to results and benefits be given on a bilateral level, so that those Parties providing the genetic material obtain a fair and equitable share of benefits when and if these are realised. The arrangement is to be decided in each individual situation according to mutually agreed terms. In order to facilitate implementation of the same, Articles 15(7), 16(3) and 19(2) have been provided. For example Costa Rica's National Institute of Biodiversity signed a historic bioprospecting agreement with a major drug company to receive funds and share in benefits from biological materials that are commercialised. Compromise regarding the broader issue of access to and transfer of technologies, is also reflected in the text of the CBD. Inspite of the importance developed countries place on intellectual property rights, a basic obligation has been created to undertake to provide, or facilitate access to and transfer of technology, including biotechnology. The provisions on technology transfer and on access to benefits of biotechnology are limited by the definition of genetic resources in Article 15(3). Funding Another important aspect of the CBD was enabling a flow of funds from the North to the South to achieve the various goals. This is achieved by means of a financial mechanism to be fed by contributions of the developed country Parties for the exclusive use of developing country Parties. The funds, which, according to Article 20 on financial resources, are to be new and additional, will be applied to enable developing country Parties to meet the agreed full incremental costs to them of the measures needed to implement the CBD’s obligations. The agreement on what exactly these costs are is to be made bilaterally between each developing country Party and the institution chosen to handle the financial mechanism. The Conference of Parties (COP) determines the amount of financial resources needed periodically and the contributions have to take into account the need for predictability, adequacy and timely flow of funds in order to meet the CBD’s obligations. The financial mechanism set out in Article 21, provides financial resources to developing countries on a grant or concessional basis, under the authority of the COP to which it is directly accountable. The Global Environment Facility (GEF) was named in Article 39 as the institutional structure operating the financial mechanism on an interim basis and conditional on restructuring. This was opposed at the time of conception of the CBD by many of the developing countries as it was felt that the GEF did not operate in a transparent and democratic manner as required under Article 21(1). However, the GEF, supported by the UNEP, the United Nations Development Programme and the World Bank has helped forge international cooperation and finance actions to address critical threats to the global environment. The GEF looks specifically at biodiversity loss, climate change, depletion of the ozone layer and degradation of international waters. Through the year 2000, the GEF contributed over $ 1 billion to 345 biodiversity projects in more than 120 countries. This was matched by nearly $ 1.7 billion in co-financing[4]. Implementation As already noted, the main thrust of implementation is at the national level. Each Party has much to do, considering the spectrum of actions Parties have to undertake and the wide range of policies they have to review. As a result, the success of national action, seen from a global perspective, will depend on the will of both the developed and developing country Parties to meet their obligations. At the international level, the machinery provided for by the CBD to steer and assist its implementation is as follows. The Conference of the Parties (COP) is the governing body of the Convention, and advances implementation of the Convention through the decisions it takes at its periodic meetings. To date the COP has held five ordinary meetings, and one extraordinary meeting (the latter, to adopt the Biosafety Protocol, was held in two parts). From 1994 to 1996, the COP held its ordinary meetings annually. Since then these meetings have been held somewhat less frequently and, following a change in the rules of procedure in 2000, will now be held every two years. To date the COP has taken a total of 114 procedural and substantive decisions. Further, the COP set out a series of standing items for the provisional agenda of its meetings, namely: Organizational matters; Reports from subsidiary bodies, the financial mechanism and the Executive Secretary; Review of implementation of the programme of work; Priority issues for review and guidance; and Other matters. The COP has also undertaken to prepare and develop a Strategic Plan for the CBD, with a view to adopting it at its sixth meeting. The plan will initially cover the period 2002-2010. It will be based on the longer-term programmes of work of the COP and SBSTTA (given below) and is intended to provide strategic and operational guidance for the implementation of these programmes. It will contain a set of operational goals that the COP wishes to be achieved in the period covered by the plan, relating to the three main areas of work, these being the thematic programmes, cross-cutting issues and initiatives, and the implementation of the provisions of the Convention. Article 25 establishes an open-ended intergovernmental scientific advisory body known as the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA). SBSTTA is a subsidiary body of the COP and is to report regularly to the COP on all aspects of its work. Its functions include: providing assessments of the status of biological diversity; assessments of the types of measures taken in accordance with the provisions of the Convention; and to respond to questions that the COP may put to it. SBSTTA has met six times to date and produced a total of 58 recommendations to the COP, ten of which have been endorsed in full by the latter. Such endorsement makes these recommendations de facto decisions of the COP. Parts of other recommendations have also been endorsed, and many others have been taken up in a modified form. The Secretariat also plays a key role, overseeing the following – Executive Direction and Management; Social, Economic and Legal Affairs; Scientific, Technical and Technological Matters; Implementation and Outreach; Biosafety; and Resource Management and Conference Services. The Clearing House Mechanism has also been instated by the CBD. This is an internet based network which promotes technical and scientific cooperation and the exchange of information. The financial mechanism has been set in motion. Financial resources, together with financial mechanism, are a standing item on the agenda of the ordinary meetings of the COP. Detailed criteria and guidelines for eligibility for access to and use of the financial resources as required by Article 21(2) have been prepared. An important consideration at this stage also is that an attempt be made to link implementation efforts of existing programmes with those of the CBD. These initiatives should not simply exist parallel to the implementation of the CBD, but should play an integral part in the process and vice versa. In the same vein, the relationship between the CBD and other conventions in the field should be reconsidered and links established to enable effective cooperation and coordination. The original reason for promoting the CBD was to fill in the gaps of the existing fragmentary regime while building upon existing conventions. The CBD is not the only document dealing with matters related to biodiversity. Other international instruments include the CITES, 1972, the Ramsar Convention, 1971 and the Convention on World Cultural and Natural Heritage. These however relate to biodiversity at a different level. Concerted action at the international level is on to work CBD with instruments like Ramsar and CITES to achieve optimum compliance with the objectives of the CBD. Reporting Each government that joins the CBD is to report on what it has done to implement the accord, and how effective this has been. These reports are submitted to the COP. So as to entail transparency these reports can be viewed by the citizens of all nations. The Secretariat works with national governments to help strengthen reporting and to make the reports of various countries more consistent and comparable, so that the world community can get a clearer picture of big trends. Part of that work involves developing indicators for measuring trends in biodiversity, particularly the effects of human actions and decisions on the conservation and sustainable use of biodiversity. The national reports, particularly when seen together, are one of the key tools for tracking progress in meeting the CBD’s objectives. Importance of the CBD to the Developing World The CBD, thus is an attempt to balance the skewed global equation that has for so long favoured the North. Aspects such as, fair and equitable sharing of commercial benefits derived out of the use of biodiversity and compensation due to indigenous people for commercial use of their traditional knowledge also serve to make the CBD an empowering tool for the South. Conclusion Although still in its infancy, the CBD is already making itself felt. The philosophy of sustainable development, the ecosystem approach, and the emphasis on building partnerships are all helping to shape global action on biodiversity. The data and reports that governments are gathering and sharing with each other are providing a sound basis for understanding the challenges and collaborating on the solutions.Progress by the CBD has been driven by its inherent strengths of near universal membership, a comprehensive and science-driven mandate, international financial support for national projects, world-class scientific and technological advice, and the political involvement of governments. However, many challenges still lie ahead. After a surge of interest in the wake of the Rio Summit, many observers are disappointed by the slow progress towards sustainable development during the 1990s. Further, the CBD and its underlying concepts can be difficult to communicate to politicians and to the general public. Nearly a decade after the Convention first acknowledged the lack of information and knowledge regarding biological diversity, it remains an issue that few people understand. There is little public discussion of how to make sustainable use of biodiversity part of economic development. The greatest crunch in sustainable development decisions is the short- versus the long-term time frame. Truly
sustainable development requires countries to redefine their policies
on land use, food, water, energy, employment, development, conservation,
economics, and trade. Biodiversity protection and sustainable use requires
the participation of ministries responsible for such areas as agriculture,
forestry, fisheries, energy, tourism, trade and finance. The challenge facing governments, businesses, and citizens is to forge transition strategies leading to long-term sustainable development. It means negotiating trade-offs even as people are clamouring for more land and businesses are pressing for concessions to expand their harvests. The longer we wait, the fewer options we will have. [1] ‘The natural resources of the
earth including the air, water, land, flora and fauna and especially representative
samples of natural ecosystems must be safeguarded for the benefit of present
and future generations through careful planning or management, as appropriate.’ [2] ‘Man has a special responsibility
to safeguard and wisely manage the heritage of wildlife and its habitat
which are now gravely imperiled by a combination of adverse factors. Nature
conservation including wildlife must therefore receive importance in planning
for economic development.’ [4] http://www.gefweb.org/Projects/Focal_Areas/BiodiversityBooklet.pdf |