Governing Global Biodiversity

The Evolution and Implementation of the Convention on Biological Diversity

Philippe G. Le Prestre

• Publisher: Routledge
• Year: 2017
• Topic: Politics & International Relations
• eBook ISBN:
  9781351932530
• Subtopic: International Relations
• Index: Politics & International Relations

Predictions about the success of the Convention on Biological Diversity (CBD) are pessimistic. It has now become commonplace to bemoan the scope, ambition, and deeply political nature of a convention that addresses issues ranging from ecosystems protection to the exploitation of genetic resources, from conservation to justice, and from commerce to scientific knowledge. Ten years after its adoption, how can we assess the difference that the CBD has made? Is it in danger of collapsing under its own weight or is it building the foundations of new patterns of relations between societies and nature? What achievements can we record and what challenges does it face? In this book, which is unique in its scope, diversity and the wealth of information it contains, contributors from a variety of academic disciplines tackle an issue of enduring importance to the protection of biodiversity and enhance our understanding of humanity's capacity to reconcile its various aspirations and halt the destructive path upon which it is set.

Chapter 1
The Story of the Biodiversity Convention: From Negotiation to Implementation

Désirée M. McGraw

Introduction

The UN-sponsored series of world summits throughout the 1990s was an important innovation in global governance. The first of these, the 1992 UN Conference on Environment and Development (UNCED) or Rio Earth Summit, provided an unprecedented forum for focusing worldwide attention and action on sustainable development. As the largest gathering of heads of state and government in human history, UNCED also served as a crucial incentive for concluding two treaties: the Convention on Biological Diversity (CBD) and the UN Framework Convention on Climate Change (UNFCCC). At the Rio Earth Summit, a record 157 countries signed the Convention on Biological Diversity. Following ratification by the requisite number of countries, the CBD entered into force in December 1993.¹

What is most striking about the CBD is that it reflects concessions secured by developing countries that they had been unable to obtain in other multilateral negotiations, whether on trade, security, or even other environmental issues such as climate change. Throughout the course of negotiating the CBD, the bargaining position of developing countries was significantly enhanced by their possession of a preponderance of the assets under negotiation. As the collective repository of four-fifths of the world’s biodiversity,² developing countries successfully secured sovereign rights over the biological resources within their respective borders and can now better control the terms of access to these assets.

As a result, attempts by powerful state and non-state actors to create a convention aimed solely at conserving biodiversity were thwarted. The CBD goes beyond environmental preservation and provides for the sharing – with communities and countries of origin – of benefits arising from the use of genetic resources.³ The enormous revenue derived from these resources – the raw material for multinational, multi-billion-dollar (US) industries in agriculture, biotechnology, and pharmaceuticals⁴ – raises the issue of who owns, controls, and profits from the genetic information stored in species. Because the CBD addresses these economic issues, it is far more than an environmental treaty. Its cutting-edge approach to conservation has implications for intellectual property rights, trade, technology, human health, and culture.⁵ Indeed, international lawyers have characterized the CBD as one of a new generation of international legal instruments that seek to reconcile the development imperatives of the South with the environmental exigencies of the North (Tinker, 1995). How did this new global treaty emerge and how has it evolved?

Ten years after the CBD’s adoption, the present chapter explores these questions by providing an overview of the Convention’s origins and key factors in its negotiation. It then examines the implications of this history, as well as the Convention’s core characteristics, for the CBD’s current implementation and overall operational effectiveness.

Such considerations are key to current high-level deliberations aimed at improving the effectiveness of multilateral environmental agreements (MEAs)⁶, which provide the legal backbone of international environmental governance – a key agenda item for the World Summit on Sustainable Development (WSSD) scheduled for August/September 2002 in Johannesburg.⁷

Origins of the CBD

Unlike its sister agreements on climate change and desertification, the CBD entered a legal field crowded with agreements addressing at least its first objective of biodiversity conservation. (A later section will examine the CBD’s overlap with agreements relating to its two other objectives, sustainable use and benefit-sharing.)

As an elaboration of the question posed above regarding the CBD’s emergence, Swanson (1999, p. 283) asks, “Why is there a global convention on biological diversity when there is no global resource by this name?” Arguing that the essential rationale for the CBD is the centralized management of land use planning, Swanson (1999, pp.281-305) details six main movements that contributed to the Convention’s development: the parks and protected areas movement (addressed below), the debt-for-nature movement, the environmental fund movement, the sustainable utilization movement, the farmers’ rights movement, and the bioprospecting movement. While an account of all these movements is beyond the scope of this chapter, their confluence resulted in the unique combination of objectives encompassed by the CBD.

1950s-1970s: The Use of International Law for Biodiversity Conservation

Although the first environmental treaties of the 19th century pertained to conservation of an economic resource, information about and sensitization to the complex issues of biodiversity have increased dramatically throughout the 20^th century. Consequently, the period from 1950 onward was marked by a growing interest within the international community in the use of law as an approach to the conservation of biodiversity.⁸

There are at present over 300 multilateral agreements for the protection of the environment, or MEAs. Of these, approximately 30 per cent address biodiversity either in full or in part. Most are aimed at protecting specific species and sites as well as regulating particular activities. In addition, while the majority of biodiversity-related MEAs are regional in scope,⁹ several are global (listed in Box 1.1).

Box 1.1 Global Agreements related to Biodiversity

International legal instruments that are concerned with wider environmental issues but address at least one aspect of biodiversity:

• The Convention on the High Seas (Geneva: 29 April 1958).
• The Convention for the Conservation of Antarctic Seals (London: 1 June 1972).
• The Convention concerning the Protection of World Cultural and Natural Heritage (Paris: 23 November 1972).
• The Convention on the Conservation of Migratory Species of Wild Animals (CMS) (Bonn: 23 June 1979).
• The United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay: 10 December 1982).
• The International Tropical Timber Agreement (ITTA) (Geneva: 18 November 1983).¹⁰

International legal agreements that deal squarely with the conservation and management of the flora, fauna and habitat:

• The Convention Relative to the Preservation of Fauna and Flora in their Natural State (London: 8 November 1933).
• The International Convention for the Regulation of Whaling (Washington DC: 2 December 1946).
• The International Convention for the Protection of Birds (Paris Convention) (Paris: 18 October 1950).
• The International Plant Protection Convention (IPPC) (Rome: 6 December 1951).
• The Convention on Fishing and Conservation of the Living Resources of the High Seas (Geneva: 28 April 1958).
• The Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar Convention) (Ramsar: 2 February 1971).
• The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (Washington DC: 3 March 1973).

Among these agreements, the World Conservation Union (IUCN) identifies four major global conventions based on the criteria of “recency” and relevancy (see Glowka, 1993). These conventions are: the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); the Convention on the Conservation of Migratory Species of Wild Animals (CMS); the Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar Convention); and the Convention concerning the Protection of World Cultural and Natural Heritage (Paris Convention). While the first two are aimed at specific activities (CITES) or species (CMS), the latter two focus on specific sites (Paris) or habitats (Ramsar). Lyster (1985) also singles out these four treaties in his renowned book, International Wildlife Law, and Bilderbeek (1992) cites them as “positive sources of international law” on biodiversity. Each of these treaties took from two to four years to enter into force (in contrast to the CBD’s 18 months), and the number of Parties range from 30 to 100 (in contrast to the CBD’s near-universal membership).

1980s: Conceptualization of a Biodiversity Convention

In 1981 the 15th IUCN General Assembly (held in Christchurch, New Zealand) adopted a resolution presented by the International Council of Environmental Law (ICEL), which requested that the IUCN Secretariat analyse:

the technical, legal, economic and financial matters relating to the conservation, accessibility and use of these [biological] resources with a view to providing the basis for an international arrangement and rules to implement it. (de Klemm 1982, p. 120).

The following year, at the IUCN Third World Congress on National Parks and Protected Areas (held in Bali, Indonesia, in October 1982), the lawyers from its Commission on Environmental Law (CEL) initiated a more comprehensive way to view genetic resources management. They called for the extension of protected-area principles to land outside protected areas and proposed a world treaty to protect wild genetic resources for the future. The congress invited the IUCN to investigate the “possible development of international instruments to regulate the commercial exploitation of wild genetic resources”.

In 1985 the 16th IUCN General Assembly adopted Resolution 16/24, which served as the basis for a preliminary draft global agreement. The resolution enumerated several principles to guide the drafters, including: the role of genetic resources in maintaining ecological diversity; access to genetic resources; state responsibility towards genetic resource conservation; national legislation; financial resources and commercial use (de Klemm 1985, p. 123).

On the basis of these principles, the IUCN Environmental Law Centre (ELC) started preparing a first draft of a convention that was later submitted to the IUCN Council. The drafting continued with ELC drawing on the extensive expertise of members of the several IUCN commissions, in particular the CEL. As a draft convention was circulated to governments and NGOs (such as Norway and the Worldwide Fund for Nature, respectively) for comments, the UN Environment Programme (UNEP) as well as several states became increasingly interested in the idea of a global biodiversity convention (interview with Burhenne-Guilmin, 1996).

1987-1992: Negotiation of a Biodiversity Convention

The CBD was formally negotiated over the course of ten intergovernmental meetings held between November 1988 and May 1992. This three-and-a-half-year period can be separated into two phases:

• The first phase consisted of three meetings of UNEP-designated national experts on biodiversity (formally entitled the Ad Hoc Group of Experts on Biological Diversity) as well as two meetings of a slightly expanded version of the previous group (the Ad Hoc Group of Legal and Technical Experts on Biological Diversity).
• The second phase comprised five meetings of the formally constituted Intergovernmental Negotiating Committee (INC) for a Convention on Biological Diversity.

Pre-negotiations: issue-framing and agenda-setting In 1987 UNEP’s Global Environment Perspective to the Year 2000 and Our Common Future, the report of the World Commission on Environment and Development (WCED), highlighted the new challenge facing the conservation and sustainable use of biological diversity. Among other issues, the latter publication underscored the economic importance of biodiversity, which it described as a “common heritage,” and proposed a “Species Protection Convention” to be accompanied by appropriate funding arrangements (WCED, 1987).

In June of that same year, the United States formally sponsored a resolution within the Governing Council of UNEP for an all-encompassing convention on the conservation of species. Indeed, the conservation of biological diversity has constituted one of the main activi...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Lists of Figures, Tables, and Boxes
• List of Contributors
• Acknowledgements
• List of Abbreviations
• Dedication
• Introduction: The Emergence of Biodiversity Governance
• 1 The Story of the Biodiversity Convention: From Negotiation to Implementation
• 2 The Cartagena Protocol on Biosafety
• 3 Studying the Effectiveness of the CBD
• 4 The Operation of the CBD Convention Governance System
• 5 The Clearing-House Mechanism: An Effective Tool for Implementing the Convention on Biological Diversity?
• 6 The Emergence and Implementation of the Advance Informed Agreement Procedure
• 7 The Fair and Equitable Sharing of Benefits from the Exploitation of Genetic Resources: A Difficult Transition from Principles to Reality
• 8 The Role of Indigenous Peoples in Conservation Actions: A Case Study of Cultural Differences and Conservation Priorities
• 9 The CBD, the WTO and the FAO: The Emergence of Phytogenetic Governance
• 10 The Science and Policy of Global Biodiversity Protection
• 11 Economics and Biodiversity Management
• 12 Development of Canadian Policy on and the Protection of Marine Diversity
• 13 Devoted Friends: The Implementation of the Convention on Biological Diversity in Madagascar
• 14 Conclusion: The Long Road to a New Order
• Annexes
• Bibliography
• Index