There
is an increasing demand and shrinking supply of biogenetic resources and
associated traditional knowledge, as a result the value of biogenetic resources
has been increasing. The supply has shrunk primarily because of tropical
deforestation, agricultural intensification and other environmental problems
like climate change, air pollution, deforestation, etc. in regions of great
biological diversity. Demand has grown with the rise of biotechnology (which
reflect the insertion of technological breakthroughs into capitalist production
systems) and its ability to assess access and use genetic material [1]
As the value of genetic resources has arisen the interest of
multinational companies,
international agencies, national governments, local bodies and local and
indigenous communities has also been
increased. The interest of international agencies and multinational companies
has been increased for the commercial exploitation of biogenetic resource and
associated traditional knowledge. The interest of national governments and
local communities has been increasing to get their share of benefits arises
from the utilization of those resources and associated traditional knowledge.
There is conflicting interest between western based multinational companies and
the governments of biodiversity rich countries and local communities.
CBD: -
The
problematic position of the character of genetic resources in international
law, concerns about the rapid speed degradation of biodiversity exceeding their
sustainability, challenges for sustainable use of the components of
biodiversity, protests from biologically rich countries and NGOs against bio
piracy practice, the necessity to regulate access to genetic resources and fair
and equitable sharing of benefit arising from the use of biogenetic resources,
were the main reasons that led to the adoption of Convention on Biological Diversity(CBD). [2] Before CBD, there were certain global
conversation treaties. They were adopted for different needs and purposes.
Neither of them in fact, covers the full range of biological diversity, i.e.
species diversity, genetic diversity and ecosystem diversity. More importantly,
none of them address the issue of access to genetic resources and benefit
sharing arising from the utilization of biogenetic resources and associated
traditional knowledge.
Until the
adoption of the convention on biological diversity, the sectoral and regional
nature of international instruments for the protection of species and ecosystem
resulted in considerable gaps in coverage in both cases. In consequence, the
priority of the new convention was to extend the scope of conservation
obligations to a much larger range of situations than those presently covered
by the body of international conservation law in force, including the global
instruments.[3]
The concept of a world convention was put forward not to replace these existing
conventions, but rather to establish general obligations for preservation of
biological diversity and to provide a coherent framework for action in the
future.[4]
Hence, CBD came as an umbrella international convention aiming not only at the
conservation and sustainable use of earth’s biological diversity, but also at
the fair and equitable distribution of the benefits arising from the use of
genetic resources.[5]
The
CBD was negotiated under the auspices of the United Nations Environment Program
(UNEP). The discussion for the Biodiversity Convention was initiated by the
UNEP’s Governing Council in 1988 and concluded on 22 in Nairobi. The issues of
biodiversity and biotechnology were originally treated by separate working
groups, but were merged to be handled by a single intergovernmental negotiating
committee in 1991, over the objections of the United States and other nations.
There were conflicting interest and position between developed and developing
countries. The negotiations for the conclusions of CBD were plagued by conflict
over the financial mechanism, the sharing of benefits and biotechnology
regulation. France originally threatened not to sign the Convention because it
did not include a list of biological diversity rich regions. Japan threatened
not to sign because it feared biotechnology regulation. At the last moment,
both France and Japan signed.[6]
United States initially proposed an umbrella convention on biodiversity,
refused to sign the CBD on the ground that the financial mechanism of the
Convention represented an open-ended commitment with insufficient over sight
and control[7]
. The benefit sharing provisions undermine the positive role that intellectual
property rights could play in the conservation of biodiversity[8].
It is further argued that the CBD provision of benefit sharing was incompatible
with existing international regimes for intellectual property rights and that
the requirement to regulate the biotechnology industry would needlessly stifle
innovation. The US signed the CBD under the Clinton Administration but has not
ratified it.[9]
President George Bush declared that the CBD threatens to retard biotechnology
and undermine the protection of ideas.[10]
The CBD was adopted at Rio de Janerio in Brazil on the 5th June, 1992 under the
auspices of the United Nations Conference on the Environment and Development.[11]
The CBD entered into force in December 1993.[12]
The
Convention was adopted at Rio de Janerio in Brazil on the 5th June, 1992 under
the auspices of the United Nations Conference on the Environment and
Development.[13]
Adequate
biological diversity limits the effects of particular environmental risks such
as climate change and parasite invasions. Diversity is essential for the
long-term viability of farming and fishing activities and forms the basis for
various industrial processes and the production of new medicines. The
conservation and sustainable use of biological diversity are essential to
ensure sustainable development and the millennium development goals relating to
poverty, health and the environment. At the Johannesburg World Summit on
Sustainable Development in 2002, the Heads of State agreed on the need to
significantly reduce the loss of biological diversity by 2010. The CBD has been
recognized as the main means of achieving this aim[14].
The CBD refers
to the ecosystem approach as a strategy for the integrated management of land,
water, and living resources that promotes conservation and sustainable use in
an equitable way. Application of the ecosystem approach involves a focus on the
functional relationships and processes within ecosystems, attention to the
distribution of benefits that flow from ecosystem services, the use of adaptive
management practices, the need to carry out management actions at multiple
scales, and inter sectoral cooperation. A number of other established
approaches, such as sustainable forest management, integrated river basin
management, and integrated marine and coastal area management, are consistent
with the ecosystem approach and support its application in various sectors or
biomes[15].
The treaty is
a landmark in the environment and development field as it takes for the first
time a comprehensive rather than a sectoral approach to the conservation of
earth’s biodiversity and sustainable use of biological resources. It, however
is not limited only to the biodiversity aspect but goes beyond the conservation
of biodiversity per se, and the 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.[16]
It can be hailed as a landmark from other points of view as well. It is the
first time that bio diversity, as such, is comprehensively addressed, and the
first time that genetic diversity is specifically covered in a binding global
treaty.[17]
It is also for the first time that the conservation of bio diversity is
recognized as the “common concern” of humankind.[18]
The convention deserts the concept of bio genetic resources as common heritage
of mankind, and explicitly recognizes the rights of states to exert sovereignty
over biological wealth within their jurisdiction.[19]
In the following
section we will highlight the salient features of CBD.
Objectives of the Convention
The CBD is designed to conserve biological diversity, ensure the
sustainable use of this diversity and share the benefits generated by the use
of genetic resources, in particular through appropriate access to genetic
resources and appropriate transfer of relevant technologies, taking into
account all rights over those resources and technologies, and through adequate
funding[20].
The major objectives of the Convention, as provided by Article 1 are the
conservation of biodiversity, the sustainable use of its components, and the
fair and equitable sharing of the benefits arising out of genetic resource
uses. To these goals, signatories must develop plans for protecting habitat and
species, provide funds and technology to help developing countries, ensure
commercial access to biological
resources for development and share revenues fairly among source
countries and developers and establish safety regulation and accept liability
for risks associated with biotechnology development. In this way the Article 1
sets out the balance of, the Convention between conservation, sustainable use
and the sharing of benefits. This is the heart of the political agreement upon
which the Convention is founded.[21]
Even though the main objective of the Convention is the conservation of
biodiversity, Article 1 provides a list of broader objective of biodiversity
conservation.[22]
The
major objectives of the Convention are[23]:
·
Conservation of biological resources,
·
Sustainable use of its components, and
·
The fair and equitable sharing of the
benefits arising from the use of genetic
resource, including by appropriate:
o
Access to genetic resources, taking
into account all rights over those resources[24],
o
Transfer of relevant technologies and
taking into account all rights to technologies[25],
and
o
Funding[26]
With these objectives, the CBD set out the
balances between conservation, sustainable use and sharing of benefits. This is
the heart of the political agreement upon which the Convention is founded.[27]
It to note that conservation of biological diversity is the first objective of
the CBD.[28]In
general conservation means the act or process of preservation of a material in
its present state, protection it from loss damage or neglect. However,
conservation in the context of CBD is more than preservation. The CBD takes an
anthropocentric approach and looks at conservation from human angle. Thus,
conservation is linked with sustainable use and benefit sharing.[29]
One strategy adopted by the convention is ‘ecosystem approach’. Therefore the
term conservation used in the CBD should be construed not just to mean
maintaining a status quo but rather to enhancing the ability of ecosystem to
generate as living system.
The term sustainable use means a use that does not
adversely affect the productivity both in short and long term in the sense of
being destroyed, used up or finished.[30] The CBD defined the term sustainable use to
mean the sue 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 [31]
the CBD adopts three means of sharing benefits: appropriate access to genetic
resources, appropriate transfer of relevant technologies, and appropriate
funding.[32]
Definition of
Biodiversity
Biological diversity, as defined by Article 2, means the variability
among living organisms from all sources, including inter alia, terrestrial,
marine and other aquatic ecosystems and ecological complexes of which they are
part. Biological diversity includes diversity within species, between species
and of ecosystems.[33]
The value of biological diversity for the mankind is traceable from the Darwin
theory for the survival of species. It was Charles Darwin who first identified
the full significance of man’s relationship to other species. Biological
diversity plays a crucial role in the global environment, economically as well
as ethically.
Article 2 of the Convention provides a comprehensive definition of
biodiversity , in agreement with the most modern scientific thinking.[34]
The Convention is the first to include ecosystems as a component of biological
diversity. Since ecosystems are the habitat of species, and destruction of
habitat is the main cause of the loss of biodiversity, the inclusion of
ecosystems as a component of biodiversity is essential for conservation. The
Convention therefore adopts a broad approach to the conservation of
biodiversity. Cyle Glowka and others
argue:
While the Convention defines
biological diversity in a scientific sense, that is, in terms of the
variability of life and the variety of systems in which life exists, by
necessity a party’s efforts to fulfil the Convention’s legal obligations will
focus on the tangible manifestation of biological diversity such as genetic
material, populations of species and ecosystems. As an attribute of life,
biological diversity can indeed only be conserved by conserving and sustainably
using biological resources and ecosystems.[35]
National sovereignty
Recognition
of national sovereignty of a country over biological resources is one of the
important attribute of the CBD. The sovereign rights of states over their natural
resources are referred to in the preamble and twice[36]in the
main text.[37]
The CBD restates the provision of principle 21 of Stockholm Declaration. In
this regard, Article 3 of the CBD
affirms :
States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental policies, and 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[38].
The rights accorded to the states by Article 3 to exploit their own
resources is almost absolute and is balanced only by imposing corresponding
duty not cause trans boundary harm to
the environment of other states or of
areas beyond the limits of national jurisdiction. Furthermore, Article 15 of
the CBD Recognizing the sovereign rights of States over their natural
resources, and grant authority to determine access to genetic resources
subject to national legislation. [39] However,
this emphasis on national sovereignty is balanced by duties deriving both
from sovereignty itself and from the fact that conservation of biodiversity
is a common concern to the entire international community. It is significant
that the convention affirms the conservation of biological diversity as a
common concern of human kinds and only there after recognizes that states
have sovereign rights over their own biological resources.[40] Furthermore
article 3 of CBD explicitly mentions that the sovereign right of the states
to exploit their biological resources must be in accordance with the charter
of the United Nations and the principle of international law.
Since most components of biological diversity are situated in areas
under national jurisdiction, the notion that biodiversity should be
considered as the common heritage of humankind was rejected.[41] Rather,
a firm emphasis was placed on sovereign rights over biological resources,
while recognizing that the conservation of biological diversity 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.[42]
Access to
Genetic Resources
Access
to genetic resources is not among the three objectives of the CBD, thus it is
a secondary norm under CBD[43].
Nevertheless, access to genetic resources was one of the thorniest issues in
the negotiation of the convention. [44]Until
enforcement of CBD, the principle of free access to genetic resources had
been prevailed. It was formally recognized by in the FAO Undertaking on Plant
Genetic Resources of 1983, though it is a legally non-binding
instrument. The CBD attempts to create
a new relationship between providers and users of genetic resources[45]
Recognizing the sovereign right of the states over
their natural resources, the CBD requires each party to endeavour to create
conditions to facilitate access to genetic resources for environmentally
sound uses by other parties and not to impose restrictions that run counter
to the objectives of CBD.[46]The CBD
gives authority to the national government to determine access to genetic
resources. Access where granted is to be on mutually agreed terms and subject
to prior informed consent of the party providing the resources.[47]
The
access provisions are not retrospective and do not apply to genetic resources
already removed from a state, for example, germplasm already in international
gene banks.
Prior Informed Consent
Further
to national sovereignty, the access to genetic resources is further balanced
by making it subject to ‘prior informed consent’ (PIC). In the international
environmental law the term ‘prior informed consent’ was first used in Basel
convention. Later the term has been used in any other conventions. Latest the
Cartagena Protocol on Bio safety further qualify the term by an adjective ‘advanced’ to make sure the
Prior informed consent is procured before
the hazardous substance is exported. Prior informed consent is important to
contracting parties in making objective decisions taking into account all
relevant considerations[48]. ‘Prior
informed consent’ is more relevant where the power relation between the
parties is asymmetrical, as it protects the weaker party by requiring other
party to reveal all the relevant information useful for the determination of
access such as the information relating to the party seeking access, scope of
application, purpose of access, prospective use and possible environmental
impacts.
Conservation and
Sustainable Use
Article 6 may be one of the most far-reaching articles in the
Convention on Biological Diversity. Under Article 6 (a), parties are required
to develop national strategies, plans or programs for the conservation and
sustainable use of biological diversity. This requirement essentially creates
an obligation for national planning.[49] Many
developed countries have started the preparation of biodiversity conservation
strategies. The aim of the strategies, plans or programs that the party
prepares (or adopts) will be to make concrete the requirements of the
relevant part of the Convention in that country, relating them to the
national context, although the word ‘national’ does not necessarily mean ‘
nationwide’.[50]
Developing countries are confronted with a number of difficulties in
fulfilling this obligation. They may not have the adequate data required for
a comprehensive biodiversity conservation strategy, which can undermine
efforts to fulfill this obligation. In addition, there are difficult
questions which must be addressed by both developed and developing countries,
centering the balance of biodiversity conservation, industrial growth and
other interests.
In many circumstances, it is difficult to determine how the use of
biological diversity can be sustainable. It has been observed that local
communities are far superior to modern industrial societies in terms of their
relationship with nature and use of biodiversity. While local communities base
their view of nature on a respect and sense of community, modern societies
tend to view nature as a resource base.[51] It is
clear therefore, that the implementation of biodiversity conservation will
involve difficult national decision.
Article 6 (b) requires parties to integrate the conservation and
sustainable use of its components into relevant sectoral and cross-sectoral
plans, programs and policies. Article 6 (b) is an obligation which is a cornerstone
of the broader one in Article 10(a). Article 10(a) requires each contracting
party to integrate the conservation and sustainable use of biological
resources into national decision-making. Article 6 (b) reinforces this by
requiring a party to integrate the conservation and sustainable use of
biodiversity into relevant sectoral plans, programmes and policies.
The basis for integrated decision-making is also generally expressed in
chapter 8 of Agenda 21. Article 6(b) and 10(a) reflect the understanding that
biodiversity conservation and sustainable use of the components of biological
diversity can only be effective through and integrative approach in which the
national plans, programs and policies of such diverse sectors as health care,
development, trade and economic policy take into consideration biodiversity
conservation and the sustainable use of its components.[52]
A national biodiversity strategy action plan should provide the basis
to improve policy integration and coordination at the national level and
sub-national levels. Integration could then be fostered and coordinated
through a multi-disciplinary focal point whose numbers could be drawn from
the public and private sectors. Indeed, this coordinating mechanism could
evolve from the focal point established to create a national biodiversity
strategy.[53]
Benefit Sharing
The
CBD imposes specific obligation on each state to share, in a fair and
equitable way, the results of research and development with the party
providing the genetic resources.[54]
Moreover, the benefit arising from the commercial utilization of the genetic
resources shall also be fairly and equitably shared by the developed
countries within the countries providing the resources.[55]
Such sharing shall be on mutually agreed terms. Thus, the benefits arising
from the use of genetic resources commercially, in the research and
development and in biotechnological application, are to be shared on mutually
agreed terms with the parties providing the resources. The parties providing
the resources are to be given the opportunity to participate in biotechnological
research.
Transboundary Harm
Article
3 of the Convention recognizes the sovereign rights of the states to exploit
their own resources in accordance with their environment policies but imposes
responsibility on the states to ensure that activities within their
jurisdiction and control do not cause environmental damage to other states.
The principles of state responsibility for transboundary environmental
damage originates from the maxim Sic
utero tuo alienum laedas which envisages the use of property in such a
manner as not to injure the property of another. The maxim found application
in the Trail Smelter Arbitration over a dispute between United States and
Canada which covered a period of thirteen years from 1928 to 1941. The
Arbitration Tribunal declared:
No state has
the right to use or permit the use of its territory in such a manner as to
cause injury by fumes in or to the territory of another or the property of
persons there in, when the case is of serious consequence and the injury is
established by clear and convincing evidence.[56]
The maxim also finds expression in Principle 21 of the Stockholm
Declaration adopted at the United Nations Conference on Human Environment
which confers responsibility on states to ensure that activities within their
jurisdiction and control do not cause
damage to the environment of other states or of areas beyond the limits of
national jurisdiction. Similarly, Rio Declaration, adopted in United Nations
Conference on Environment and Development accepts this principle. Principle 2
of the Rio Declaration states that states have, in accordance with the
charter of the United Nations and the principles of International law, the
sovereign right to exploit their own resources pursuant to their own
environmental and developmental policies, and the responsibility to ensure
that within their jurisdiction or control do not cause damage to the
environment of other states or of areas beyond the limits of national
jurisdiction. The principle has been understood and used in soft law since
1972, as a defense for national sovereignty against the growing intrusiveness
of international environmental policy and law.[57]
Burhenne Guilmin and Casey-lefkowitz maintain:
This emphasis
on national sovereignty is balanced by duties deriving both from sovereignty
itself and biological diversity as a common concern to the entire
international community. More important is the fact that emphasis is placed
on the responsibilities of states towards their own biological resources,
which is complementary to the responsibility under Article 3 to ensure that
the activities within their jurisdiction and control do not cause damage to
the environment of other states, or of areas beyond national jurisdiction.[58]
The principle is often cited by the publicists and consistently adopted
by the states in practice with the belief that it has legal force. It has,
therefore crystallized into customary norm of international law. However, the
sovereign right to exploit resources must be in accordance with the charter
of the United Nations and the principles of international law. These
principles, supported by a number of judicial decisions, include basic
obligations for all states to protect their environment, to use natural
resources sustainably and to prevent transboundary environmental damage.
Thus, while exercising their sovereign rights, states have to ensure the
activities on their territory or under their control do not cause damage to
the environment of other states or areas beyond national jurisdiction.
Allowing for the sovereign rights or states over their natural resources may
prevent a ‘tragedy of the commons’[59]
situation with natural resources on an international level.
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Transfer of Technology
Under
Article 16, the Convention adopts provisions regarding access to and transfer
of technology which is basic to the conservation and sustainable use of
biological diversity. The access to and transfer of technology among the
parties are essential elements for the attainment of the objectives of the
Convention. Accordingly, each party undertakes to provide and / or facilitate
access for and transfer to other parties of environmentally friendly
technologies that are relevant or the conservation and sustainable use of
biological diversity of that make use of genetic resources.[60] The
Convention specifically states that technology includes biotechnology.[61]
The access to
and transfer of technology to the developing countries shall be provided and
or facilitated under fair and most favorable terms, including on confessional
and preferential terms where mutually agreed.[62]
Each party is to take legislative, administrative or policy measures to
ensure that developing countries which provide genetic resources are provided
access to and transfer to technology which makes use of those resources on
mutually agreed term.[63]
The state parties are to take legislative, administrative or policy measures
with the aim that 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.[64]
The provisions of the Convention governing transfer of technology are
ambiguous in their treatment of intellectual property rights. Clearly
contemplating the use of licensing agreements, the Convention requires the
access and transfer to be provided on fair and most favorable terms,
including on mutually agreed concessional and preferential terms,
consistently with the adequate and effective protection of intellectual
property rights. Parties are, however to cooperate to ensure that the
intellectual property rights are supportive of and do not run counter to its
objectives.[65]
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Under
the CBD each party has an obligation to take legislative, administrative, or
policy measure to provide for the effective participation in biotechnological
research activities by those developing states which provide for the genetic
resources for such research.[66]
Each party shall also advance priority access to developing states providing
the genetic resources, on a fair and equitable basis, to the result and
benefits arising from biotechnologies based upon such genetic resources. The
CBD also calls upon the parties to consider the need for and the modalities
of a protocol setting at appropriate procedures, including in particular,
advance informed agreement, in the field of safe transfer, handling and use
of any living modified organism resulting groom biotechnology that may have
adverse effect on the conservation and sustainable use of biological
diversity. [67]
Identification and
Monitoring
Article
7 of the Convention is about the ordering and use of information on
biological diversity and biological resources. It provides in effect that the
identification and monitoring of components of biological diversity is a
necessary prerequisite for achieving the objectives of Article 8,9 and 10. It
requires parties to:
¨
identify the components of
biodiversity important for conservation and sustainable use; [68]
¨
monitor the components of biological
diversity;[69]
¨
identify and monitor processes and
categories of activities having or likely to have significant adverse impact
on the conservation;[70] and
¨
Maintain and organize the data
derived from identification and monitoring activities.[71]
Identification and monitoring will involve a combination of new data
generation, gathering together existing information and the ordering that
needs to occur to ensure that all information is accessible and usable for
conserving biodiversity and sustainably using its components. Implicit in
Article 7 is the assumption that the information to be gathered for it to be
used. In deed, identification and monitoring are tools for action, not ends
in themselves. Article 8 requires parties to regulate or manage the processes
and activities identified under Article 7(c) if they have been found to have
significant adverse effects on biodiversity. As stated by Lyle Glowka and
others, Article 7(c) and 8(l) are
innovative in international law, and are a vital part of the Convention,
because controlling the impact of harmful process and activities are the most
important steps parties can take to reduce the continuing loss of
biodiversity.[72]
To undertake these activities, many countries, especially developing
countries, will need to strengthen their existing institutions and establish
new institutions with sufficiently qualified staff. The financial mechanism
provided by the Convention would be useful for capacity building in this
regard.
In
situ Conservation
With respect to in situ
conservation, the Convention imposes an obligation on the parties under
Article 8 to establish system of protected areas where special measure need
to be taken to conserve biological diversity. The Convention also imposes an
obligation on contracting parties to develop, where necessary, guidelines for
the selection, establishment and management of protected areas where special
measures need to be taken to conserve biological diversity. Article 8
provides the main set of obligation in the Convention to conserve biological
diversity. In fact, the Convention recognizes in situ conservation as the primary approach for biodiversity
conservation. According to June Starr and Kennet C. Hardy the Convention is
unique for its emphasis on in situ
conservation.[73]
The preamble recognizes that in situ
conservation of ecosystems and natural habitat and the maintenance and
recovery of viable population of species in their natural surroundings is
crucial to maintaining biological diversity. Therefore the Convention
recognizes in situ conservation as
the primary approach for biodiversity conservation, by protecting species and
ecosystems in their place of origin.[74] Under
Article 8 parties are, among other things, required to do the following:
¨
establish a system of protected areas
or areas where a special measures need to be taken to conserve biological
diversity,
¨
promote the protection of ecosystems,
natural habitats and the maintenance of viable population of species in their
natural surroundings,
¨
rehabilitate and restore degraded
ecosystems and promote the recovery of threatened species, inter alia, through the development
and implementation of plans or other management strategies,
¨
prevent the introduction of, control
or eradicate the alien species that threaten ecosystems, habitats or species,[75]
¨
develop or maintain necessary
legislation and/or other regulatory provisions for the protection of
threatened species and population and
¨
where a significant adverse effect on
biological diversity has been determined pursuant to Article 7, regulate or
manage the relevant processes and categories of activities.
Thus, the Convention places greater emphasis upon the conservation of
ecosystems than upon the specific protection of species. As threats to
biodiversity have increased both in developed and developing countries mainly
as a result of the destruction of natural habitats, the conservation of
ecosystems seem to be the best approach for conserving biodiversity. It also
covers the in situ conservation of
human created plant varieties and animal breeds of particular interest is the
balance struck between conservation measures envisaged both within and beyond
protected areas.[76]
ex
situ Conservation
In addition to in situ
conservation measures, in some cases the components of biological diversity
can also be conserved ex situ, that
is outside their natural habitats. The Convention envisions ex situ conservation as the complement
of in situ approaches. Under
Article 9, parties are required to adopt measures for ex situ conservation of and research on plants, animals and
microorganisms, preferably in the country of origin or country of origin of
genetic resources. This requires the adoption of measures for the recovery
and rehabilitation of threatened species, and for their reintroduction into
their natural habitats under appropriate conditions. Article 9 also provides
for the regulation and management of the collection of biological resources
from natural habitats for ex situ
conservation purposes so as to threaten ecosystems and the in- situ
population of species.
ex situ
conservation provides excellent opportunities for research on the components
of biological diversity conserved. A variety of institutions, for example,
seed banks, microbial resources centers, zoos, aquaria and botanical gradens
both at the international and national levels, are involved with research.
Some of these institutions also play a central role in public education and
awareness, primarily by bringing members of the general public into contact
with plants and animals they may not normally come in contact with. ex situ conservation is particularly
important for domesticated and cultivated species and has been the main
conservation approach for agricultural land roles and other crop cultivators.
Further ex situ approach of
biodiversity conservation can contribute to in situ conservation when habitats have become so degraded or
population sizes have fallen so low that it is not possible to ensure
survival of certain species. The phrasing of Article 9(a) and (b) implies
that each party should have its own conservation facilities. Article 9(a) and
(b) also seem to intend to ensure a balance between action in developed and
developing countries with plants and animals that are far from their country
of origin.[77]
ex situ method may assure the
availability of number of gene sources, but the risk and problems of ex situ maintenance include high
costs, under-funding, political manipulation and the threat of regional
conflicts.[78]
Even if ex situ sources were not vulnerable
to financial, political and natural disasters, evolutionary growth is not
possible without in situ
preservation.[79]
It is therefore best to have both in
situ and ex situ conservation
measures as required by the Convention and as permitted by the financial
capability of each party. Thus, comprehensive species conservation programs
that use in situ and ex
situ techniques in an integrated manner.
Impact Assessment
Under
Article 14, parties are obliged to introduce appropriate procedures requiring
Environmental Impact Assessment (EIA), for proposed projects that are likely
to have significant adverse effects on biodiversity, with a view to avoiding
or minimizing such impacts. Parties are also obliged to involve the public in
EIA procedures and processes, and ensure that the environmental consequences
of government programs and policies are duly taken into consideration.
Similarly Article 17 of Rio Declaration (adopted in the UN Conference
on Environment and Development, 1992) provides EIA as national instrument. It
is provided that environmental impact assessment, as a national instrument
shall be undertaken for proposed activities that are likely to have a
significant adverse impact on the environment and one subject of a decision
of a competent national authority. In passing, it can be noted that the word
‘Projects’ in Article 14(I) undermines the importance of an EIA. Although
Article 14 requires parties to develop EIA procedures and made it binding,
the exclusion of the term ‘ programmes and policies’ limits the ambit of EIA.
For example Caring for the Earth recommends that fiscal policies and
legislative enactment should also undergo EIA studies.[80]
However in the case of imminent or grave danger or damage to
biodiversity within the jurisdiction of other states or in areas beyond the
limits of national jurisdiction, Article 14(1) (d) requires parties to notify
the potentially affected states and initiate action to prevent or minimize
such danger or damage.
Financial
Resources and Institutional Mechanism
Financial Resources
Article
20 of the Convention addresses the issue of financial resources. Article
20(1) requires parties to provide financial support and incentives in
accordance with their capabilities for those national activities that one
intended to achieve the objectives of the Convention, in accordance with its
national plans, priorities and programs. Thus, developed and developing
countries are primarily required to fulfill the objectives of the Convention
using their own resources.
The developed countries are obliged to provide new and additional
financial resources to the developing countries to enable them to fulfil the
obligations of the Convention and benefit from its provision.[81]
The extent to which the developing countries will depend on the effective
implementation by developed countries of their commitments under the
Convention related to financial resources and transfer of technology.[82]
The Convention also stipulates that the effective implementation of the
obligations of the developing countries under the Convention will also take
into account the fact that economic and social development and eradication of
poverty are the first and overriding priorities of the developing countries.[83]
Thus, the Convention gives paramount importance to the priorities of the
developing countries for economic and social development and eradication of
poverty. The Convention allows the developed countries also to provide and
the developing countries to avail themselves of the financial resources
related to the implementation of the Convention through bilateral, regional
and other multilateral channels.
Financial Mechanism
Under Article 21 of the Convention there shall be a
mechanism for the provision to provide the financial resources to the
developing countries on a grant or concessional basis. The institutional
structure for the operation of the mechanism shall be decided by the
conference of the parties established under the Convention. The mechanism
shall function under the authority and guidance of the conference of the
parties shall also be accountable to it. The conference of parties shall also
determine the eligibility criteria relating to the access to and utilization
of such resources. The contributions shall be made by the developed countries
taking into account the amount of resources needed and the burden sharing
among the contributing parties. The amount of resources needed shall be
determined periodically by the conference of parties. The Convention states
that the financial mechanism shall operate within a democratic and
transparent system of governance.
However, Article 39 designated the Global Environmental facility (GEF)
of the UNDP, UNEP and the IBRD as the interim institutional structure for the
period between the Convention entry into force and the first meeting of the
conference of the parties. The GEF will now serve as the required
institutional structure. The effectiveness of the financial mechanisms depends
upon the level of contributions made by developed countries.
Institutional
Infrastructure
Conference of the
Parties
The Convention establishes a Conference of the Parties.[84] The
first meeting of the Conference of the Parties shall be convened by the
Executive Director of the UNDP not later than one year after the entry into force of the
Convention and thereafter ordinary meeting of the Conference of Parties shall
be held at regular intervals to be determined by the Conference at its first
meeting.[85]
The Conference of Parties shall by consensus adopt rules of procedure
for itself and for any subsidiary body it may establish.[86]
The Conference of the Parties shall review the implementation of the
Convention and for this purpose, inter alia, shall:[87]
¨
review the reports submitted by each
party on measures which it has taken for the implementation of the provisions
of this Convention and their effectiveness in meeting the objectives of this
Convention;
¨
review scientific, technical and
technological advise or biological diversity provided by the Subsidiary Body
on Scientific, Technical and Technological Advise established under the
Convention;
¨
consider and adopt protocols to this
Convention ;
¨
consider and adopt amendment of this
Convention and its annexes ;
¨
consider and recommend adoption of
the amendments to any protocol as well as to any annexes relating there;
¨
consider and adopt additional annexes
to this Convention;
¨
Establish such subsidiary bodies,
particularly to provide scientific and technological advise for the
implementation of this Convention.
The United Nations, its specialized agencies and the International
Atomic Energy Agency ( IAEA) as well as any
state not a party to this Convention may be represented as observers
at meeting of the Conference of the Parties. Any other body or agency whether
governmental or non-governmental, qualified in fields relating to
conservation and sustainable use of biodiversity, which has informed the
secretariat of its wish to be represented as an observer at a meeting of the
Conference of the Parties, may be admitted unless at least one third of the
parties present object.[88]
Scientific
Body on Scientific, Technical and
Technological Advice
The Convention provides for the establishment of a subsidiary body to
provide scientific, technical and technological advice to the conference of
the parties.[89]
The subsidiary body, inter alia, shall:[90]
¨
provide scientific and technical
assessments of the status of the
biological diversity;
¨
prepare scientific and technical
assessments of the effects of types of measures taken in accordance with
provisions of this Convention;
¨
identify innovative, efficient and
state-of-the-art technologies and know-how relating to the conservation and
sustainable use of biological diversity and advice on the ways and means of
promoting development and / or transferring such technologies ;
¨
Provide advice on scientific programmes
and international co-operation in research and development related to
conservation and sustainable use of biological diversity.
Article 25(I) makes it clear that the subsidiary body shall comprise
government representatives competent in the relevant field of expertise.
Since the subsidiary body is declared open only to government
representatives, each government will decide who may or may not serve from
within its borders, and it will be difficult for non-government officials to
serve at all. This approach contrasts starkly with the scientific and
technical review panels established by the Montreal Protocol on substances
that deplete the ozone layer which were open to experts without governmental
approval. These panels were highly effective at promoting consensus on
scientific controversies and at uncovering creative solutions. Because
Biodiversity Convention gives governments more control over choosing the
panels, chances government briefs and to refrain from the type of open minded
give and take that makes learning and problem solving possible.[91]
National Reports
The
Convention imposes and obligation on each party to submit to the conference
of the parties, reports on measures which it has taken for the implementation
of the provisions of this Convention and their effectiveness in meeting the
objectives of this Convention. The reports shall be submitted by the parties
at intervals to be determined by the conference of the parties. The
provisions mandatory national reports put enormous persuasive force on the
states parties to take measures to effectively implement the Convention
provisions.
Biodiversity is a valuable resource and is being
eroded at an alarming rate. Therefore efforts are needed to quantify and
understand its patterns to combat threats to its erosion, and find ways to
exploit it in a sustainable way. The Biodiversity Convention is not the end
of the road but a crucial milestone along the road. The Convention commits
the state to binding obligations to manage national affairs to common international
benefit it launches the process to promote international cooperation in
technology and techniques for the conservation and sustainable use of
biological resources and to help stimulate benefit sharing arrangements
between countries. To fulfil these tasks, the Convention demands effective
follow-up actions at the national and international levels.
The
developed countries have to take lead to help the developing countries not
only to formulate and publish national plans for action on biodiversity but
also to implement the plans. The biological diversity can be effectively
protected through constant vigilance and restless efforts by states,
international agencies, private companies, academic institutions, learned and
professional societies, the voluntary sector and many others.[92]
|
References: -
[1] S. B. Brush, “Indigenous Knowledge of Biological Resources and Intellectual Property Rights: The Role of Anthropology”, 95 (3) American Anthropologists, 65 (1993)
[1] S. B. Brush, “Indigenous Knowledge of Biological Resources and Intellectual Property Rights: The Role of Anthropology”, 95 (3) American Anthropologists, 65 (1993)
[2] Smagadi Aphrodite,
Analysis of the objectives of the Convention on Biological Diversity: Their
Interrelation and Implementation Guidance for Access and Benefit Sharing,
Columbia Journal of Environmental Law, 2006, Vol, 31:2, Pp 244- 284
[3] Shine Clare Et al,
Biological diversity conservation and the law, Environment policy and law paper
no. 29, IUCN 1993, 17.
[5] Smagadi Aphrodite,
Analysis of the objectives of the Convention on Biological Diversity: Their
Interrelation and Implementation Guidance for Access and Benefit Sharing,
Columbia Journal of Environmental Law, 2006, Vol, 31:2, Pp 244
[6] Gurdip Singh, “Legal Aspects of Biodiversity Convention” 17 DLR 121 (1995)
[7] Ibid.
[8]
Aykut Coban, “Caught Between State Sovereign Rights and property Rights:
Regulating Biodiversity”, 11(4)Review of International
Political Economy ,744 (2004)
[10] Id.744
[11]A.P. Nagore, Biological Diversity and International Environmental Law. A.P.H.
Publishing Cooperation, New Delhi, 52 (1996)
[12] Narayan Belbase, The Implemention of International Environmental Law in Nepal , IUCN Nepal
[13] A.P. Nagore, Biological Diversity
and International Environmental Law. A.P.H. Publishing Cooperation, New
Delhi, 52 (1996).
[15] Millennium Ecosystem Assessment,
Ecosystems and Human Well-being:
Biodiversity Synthesis. World Resources Institute, Washington, DC. (2005)
[16] Glowka Lyle et al, Guide to the conventions on Biological
Diversity, Environmental Policy and law
paper no 30, IUCN, 1994, 1
[17] Smagadi Aphrodite,
Analysis of the objectives of the Convention on Biological Diversity: Their
Interrelation and Implementation Guidance for Access and Benefit Sharing,
Columbia Journal of Environmental Law, 2006, Vol, 31:2, Pp 249
[18] Glowka, L, et al.,
(1994), A guide to the convention on Biological Diversity, IUCN, Gland and
Cambridge. Xii + 161 pp.
[19] Smagadi Aphrodite,
Analysis of the objectives of the Convention on Biological Diversity: Their
Interrelation and Implementation Guidance for Access and Benefit Sharing,
Columbia Journal of Environmental Law, 2006, Vol, 31:2, Pp 250.
[21] Cyle Glowka, Francaise Burhenne-Guilmin and Hugh Synge, in collaboration with Jaffrey A. Mc Neely and Lothar Guilding,
A guide to the Convention on Biological
Diversity, Environmental Policy and Law Paper No. 30, IUCN Environmental
Law Centre, IUCN Biodiversity Programme,
Gland, Bonn, 15 (1994).
[22] S.K.N.
Blay and R.W. Piotrowicz, “Biodiversity Conservation in the twenty first
century: “A Critique of the Earth Summit”, 10 Environmental and Planning Law Journal, 450 (1993).
[23] CBD, Art.1
[24] CBD, Art. 15
[25] CBD, Art.16,19
[26] CBD, Art.20, 21
[27] Cyle Glowka et.al , A guide to the
Convention on Biological Diversity, Environmental Policy and Law Paper No.
30, IUCN Environmental Law Centre, IUCN
Biodiversity Programme, Gland, Bonn, 15 (1994).
[28] Ananda Mohan Bhattrai, protection of Himalayan Biodiversity, Sage,
Delhi, 41(2010).
[29] Id.42
[30] Ibid.
[31] CBD, Art. 2
[32] Cyle Glowka et.al , A guide to the Convention on Biological
Diversity, Environmental Policy and Law Paper No. 30, IUCN Environmental
Law Centre, IUCN Biodiversity Programme,
Gland, Bonn, 15 (1994).
[33] Convention on Biological
Diversity, Art.2.
[34] Supra note, 4 at 19.
[35] Supra note, 8 at 16.
[37] Glowka, L, et al.,
(1994), A guide to the convention on Biological Diversity, IUCN, Gland and
Cambridge. 1-3
[38] CBD, Art.3
[39] CBD, Art.15
[41] Glowka, L, et al.,
(1994), A guide to the convention on Biological Diversity, IUCN, Gland and
Cambridge. 3
[43] Regine Anderson, Governing
Agrobiodiversity, Department of Political Science, Faculty of social
Sciences, University of Oslo, 168(2007)
[44] Cyle Glowka et.al , A guide to the Convention on Biological
Diversity, Environmental Policy and Law Paper No. 30, IUCN Environmental
Law Centre, IUCN Biodiversity Programme,
Gland, Bonn, 5 (1994).
[45] Narayan Belbase, National
Implementation of the Convention on Biological Diversity, IUCN, Kathmandu,
Nepal, 40(1999)
[46] CBD, Art. 15(1), 15(2)
[47] See, CBD, Art.15
[48] Ananda Mohan Bhattrai, Protection
of Himalayan Biodiversity, Saze, India, 96(2010)
[49] Supra note, 8 at 29.
[50] Id., at 31.
[51] Heff Schucking and Patrick Anderson, “Voices Unheard and Unheeded,” in
Vandana Shiva et al. (ed.), Biodiversity:
Social and Ecological Perspective, 31 (1991).
[52] Supra note, 8 at 32.
[53] Ibid.
[54] CBD, Art. 15(7)
[55] Ibid.
[56] Trail Smetter Arbitration, 35 American
Journal of International Law, 716 (1941).
[57] Supra note, 8 at 28.
[58] Francoise Burhenne-Guilmin and Susan Cosey-Lefkowitz, “the Convention on
Biological Diversity: A Hand Won Global Achievement” 3 Year Book of International Environmental Law, 43 (1993).
[59] See Gareet Hardin, “The Tragedy of Commons”, 162 Science, 1243-1248 (1968).
[60] CBD, Art. 16 (1)
[61] Ibid.
[62] CBD, Art. 16 (2)
[63] Id., Art. 16 (3).
[64] Id., Art. 16 (4).
[65] Id., Art. 16 (2).
[66] Id.,
Art. 19 (1).
[67] Id., Art. 19 (3).
[68] Supra note, 10 Art. 7 (a).
[69] Id., Art. 7 (b).
[70] Id., Art. 7 (c).
[71] Id., Art. 7 (d).
[72] Supra note, 8 at 36.
[73] June Starr and Kenneth C. Hardy, “Not by Seeds Alone: the Biodiversity
Treaty and Role for Native Agriculture”, 12 Stanford
Environmental Law Journal, 85 (1993).
[74] Supra note, 8 at 39.
[75] For other obligations, see Art.
8.
[76] Supra note, 8 at 52.
[78] See Stephen B. Brush, “A Farmer-Based Approach to
Conserving Crop Germplasm", 45 Economic Botany, 154(1991).
[79] Margery L. Oldfield and Janis B. Alcorn, “The Conservation of Traditional
Agrosystems", Bioscience, 199,
201 (March 1987).
[80] IUCN/UNEP/WWF, Caring for the
Earth: A study for sustainable living, 66-67 (1991).
[81] Id., Art. 20 (1).
[82] Id., Art. 20 (4).
[83] Ibid.
[84] Id., Art. 23 (1).
[85] Ibid.
[86] Id., Art. 23 (3).
[87] See id., Art. 23 (4) (a) (b) (c) (d) (e) (f) (g),
25, 26, 28, 29, 30.
[88] Id., Art. 25.
[89] Id., Art. 25 (1).
[90] Id., Art. 25 (2).
[92] Supra note, 10 Art. 20.
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