Convention on biological diversity an analytical overview

Convention on biological diversity an analytical overview

By dr.fourkan Ali

Over the last several years, biodiversity has emerged as an issue of global concern because of its rapid reduction worldwide. The problem is more acute in the developing countries. The loss is attributed KJ the prevailing socio-economic factors that encourage exploitative development while discouraging conservative resource use. For example, the amounts being spent at the global level to exploit resources and deplete bio-diversity are many orders of magnitude greater than the small amount of funds available for conservation.

However; conservation thinking in recent years has advanced beyond the narrow corner with species or habitat protection towards a more comprehensive integration of conservation and development goals through the promotion of sustainable use of natural eco-systems. The reflection of such changes in perspective was the adoption of the Convention on Biological Diversity (CBD) at the Earth Summit in Rio de Janeiro in 1992, The convention entered into force on 29 December; 1995. It is a binding document on the part of the signatories. It's a framework convention, meaning that the Contracting Parties may decide how they will implement the provisions of the CBD. Since it’s a legal document, the purpose of this short piece is to decipher CBD and to discover the implications of its provisions.

Objectives of the CBD

Article-1 of the Convention sets three main objectives to be fulfilled by the parties:

O             The conservation of biological diversity (Articles 6-9, 11 and 14)

O             The sustainable use of its components - forests, wetlands and marine eco-systems (Articles 6, 10 and 14)

O             The fair and equitable sharing of the benefits arising from the use of genetic resources

O             Access to genetic resources (Article 15), taking into account all nghts over those resources

O             Trader of relevant technologies (Articles 16 & 19), taking into account all rights to technologies

O             Funding for conservation in the developing world (Articles 20 &21).

Feature of the CBD

The following essential features of the Convention should be mentioned:

a) The conclusion of the CBD indicates a basic conceptual shift-instead of the traditional nature conservation approaches, which emphasized the protection of wildlife in nature reserves, CBD focuses on meeting people’s needs from biological resources, while ensuring their sustainable use, Thus, conservation measures and methods fir sustainable use are acknowledged as separate, albeit mutually supportive, concepts.

b) An explicit link is established between access to genetic resources and transfer of technologies considered essential to conservation and sustainable use of bio-diversity.

c) The earlier concept of "common heritage of mankind" with regard to biological resources has been abandoned in favor of common concern of mankind," a broader concept, but with less proprietary connections. At the instance of developing countries, the concept of "common concern" was adopted as the expression of a global interest and a shared responsibility in the conservation and sustainable use of bio-diversity,

d) The considerable cost for developing countries of maintaining bio logical diversity has been taken into account and provision has been made for "new and additional" financial resources to enable them to meet such costs (Articles 20 & 21).

e) Another innovative element that deserves to be noted is the recognition of the contribution of indigenous peoples and rural masses to the conservation of biological diversity and the sustain able use of its components, Though Article 15 of the CBD has given the State the power of determining the access to genetic resources, the provision of Article 8 (1) is still considered a significant step forward. Though the action it contemplates is subject to national legislation, it is the first time that governments have been called upon in a binding international instrument to "respect, preserve and maintain" the knowledge of indigenous communities relevant to biological diversity and to encourage the equitable sharing of the benefits arising from the utilization of such knowledge.

Principles of CBD

Article 3 can be viewed as the sole operative principle of the Convention. It reads:

States have, in accordance with the Charter of the United Nations and the principles of imitational law, the sovereign right to exploit their own resources pursuant to their own environmental polices, and the responsibility to ensure that all 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.

Thus the CBD strikes a balance between the exercise of sovereign rights over natural resources and the responsibility to refrain from activities that cause trans-boundary effects or effects upon areas beyond national jurisdiction, The Preamble also refers to other principles and concepts of international environmental law that have equally inspired the convention. Important amongst them is the precautionary principle that is of precautionary relevance to the conservation of bio-diversity in view of the general lack of information and knowledge regarding biological diversity as well as the scientific uncertainty surrounding the basic issues such as the importance of species diversity for the stability of eco-system. Equally important is the reference to inter-generational equity that is presented as the rationale for conservation and sustainable use of bio-diversity.

Tools of Conservation

The Convention requires governments to adopt specific measures for the conservation and sustainable use of biological resources. To this end, it attaches the utmost priority to in situ (in-site) conservation (Article 8), but also recognizes the complementary nature of ex situ (off-site) measures (Article 9). For the purpose of in situ conservation, governments are required to establish a system of protected areas, or areas where special measures need to be taken to conserve biological diversity the first type of area (i.e. protected area) is defined in the Convention (Article 2), but the exact meaning and scope of the latter category is not given anywhere. In view of the increasingly limited land available for nature reserves, wilderness areas and national parks, the Convention provides the alterative option of areas with special measures to conserve bio-diversity this would presumably allow for a border use of sustainable resources extraction. It would also help avoid conflicts with local communities who have traditionally depended for their livelihood on the land.

The measures used for ex-situ conservation, Include botanical and zoological gardens, arboreta, aquaria, seed banks, tissue and cell culture and culture collections. The most well known ex situ conservation facilities for plant genetic resources are seed banks. Historically the most ex situ conservation has been undertaken in the developed countries. Lack of financial resources and technology did not allow the developing countries to do much in ex situ conservation. As a result, Article 9 stipulates that ex situ conservation should only serve as a complement to in situ conservation. Even then, the measures adopted for the ex situ conservation and the facilities established or maintained for that purpose should preferably be in the country of origin of genetic resources.

Institutional Arrangements

After long negotiations, a consensus has been reached that the Global Environmental Facility (GEF) will function as the financial mechanism for conservation of bio-diversity In addition, the Convention provides for die establishment of three other institutional arrangements to facilitate the implementation of its provisions:

1. Conference of the Parties (COP) [Article 23]

2. The Secretariat (Article 24)

3. Subsidiary body on scientific, technical and technological advice

(Article 25)

To make its implementation more effective, a number of gaps will have to be filled and loose ends tied up. The Convention itself provides a mechanism for doing so in the form of adoption of additional protocols. Such protocols will be required in a number of areas:

O             Modalities for sharing of knowledge and transfer of technologies

O             Research, training and public education

O             Monitoring and early warming of bio-diversity erosion in hot spots of the earth

O             Promotion and protection of indigenous knowledge and practices

O             Risks associated with living mod' led organisms and genetically modified organisms

Cartagena Protocol on Bio-safety

Ecological concerns about releases of living modified organisms (LMOs) into the environment include adverse impact of LMOs on non-target eco-systems and species, and transfer of genes to wild plants resulting in herbicidal traits or antibiotic resistance. Article 19(3) of the CBD addresses this concern, and calls for the parties to consider the nee for; and modalities of, a Protocol setting out procedures in the field of safe transfer handling and use of LMOs. Attempts were made to finalize a Protocol on Bio-safety during the third week of February 1999, which was to have been adopted by an Extraordinary Meeting of the CoP in Cartagena, Colombia, The main objective of the Protocol (Article 1) is to contribute to an adequate level of environmental protection from modern bio-technology that may have adverse effects on the conservation and sustainable use of biological diversity One area of contention was the relationship between the proposed Protocols provisions and the WTO rules. For example, disagreement exists even within the industrial countries as m what extent the introduction of genetically modified crops should be allowed for food production. As was evident, the negotiations were very intense among the following groups of countries: `

O             Miami Group (USA, Canada, Australia, Uruguay & Chile) – this group insisted that the Protocol exclude commodities from the agreement (i.e. 90% of GMOs).

O             like-Minded Group (the South): protocol to cover all GMOs.

O             Compromise Group (EU, Switzerland, Norway Japan, New Zealand & some others) that worked for bridging the differences between the two other groups. Despite all me differences, the common concern in the negotiations were:

O             Uncertainties of technology and science should not be an excuse to postpone action (precautionary principle),

O             Conflict with WTO provisions, less man a year after the SBD came into force, the WTO was established in place of GATT with a quite different agenda, the latter was devised to ensure free and unhindered trade among nations. The Trade Related Intellectual

O             Properties (TRIPs) is apart of WTO provisions. The main points of TRIPs are:

O             Entails obligations of IPRs for all fields of technology

O             Sets up the first global system of IPR on bio-diversity specifically plant varieties.

O             Requires the application of either patents or an 'effective' sui gnfris (unique) system to 'protect' plant varieties at the national BE _

O             Must be implemented in the South by 2,000.

O             Must be implemented in the least Developed Countries by 2005.

O             Will be reviewed in 1999 (Art. 27.3b) and 2000 (the entire Agreement).

Main Conflicts between CBD and TRlPs

CBD	TRIPs	Conflicts
Nations sovereign right over biological resources.	Biological resources are subject to private IPRs.	Nations right to prohibit IPRs on life forms conflicts with IPR’s stance on micro-organisms, non-biological & micro-biological processes, as well as patents and/or sui generis protection of plant varieties.
Fair & equitable share of benefits from biological resources.	No mechanism of sharing benefits.	CBD gives the South a legal basis to demand a share of benefits; TRIPs negate it.
Access to biological resources requires the ‘prior informed consent' (PIC) of the country of origin, as well as the ‘approval and involvement of local communities.	No provision of PIC for access to biological resources and patenting.	CBD at least aims to reduce bio-piracy.
Conservation & sustainable use of biodiversity is a ‘common concern’ of mankind.	Private interests of IPR holders dominate the TRIPs provisions.	Conflict over public vs. private interests.

Source: Farhad Mazhar’s "CBD and TRIPs: A Review of Conflicts and Contradictions," a paper presented at the Workshop on Environmental Law and Sustainable Development in Bangladesh, organized by the Department of Environment, Govt. of Bangladesh, and .sponsored by SACEP/UNEP-EAP, 22-23

September, 1999