Reproduced, with permission, from:
Groombridge, B., ed. 1992. Intellectual property rights for biotechnology. In Global biodiversity: Status of the Earth's living resources, 495-99. London: Chapman and Hall.
Editor: Brian GroombridgeGlobal Biodiversity: Status of the Earth's Linving Resources
Chapman & Hall 1992 pg576-578
As developing countries have come to realize the economic value of their biodiversity, so the political considerations surrounding its utilization have become more complex. The direct commodity values of exploited biological resources, such as tropical hardwoods and fisheries, are well established, as are the indirect benefits from tourism and game viewing; what has changed is the recognition of the value of biodiversity as a genetic resource available for commercial exploitation through biotechnology.
Developing countries are now demanding a greater share of the economic benefits arising from the use of resources within their boundaries which until now have mainly accrued to the industrial countries with the technological capability to exploit them.
At the same time, the developed world has become increasingly apprehensive about the accelerating rate of loss of biodiversity and its global consequences (of tropical deforestation upon global climate change, for example). Developed countries want to see the use of biological resources placed on a sustainable basis, and are linking their overseas development assistance to this tenet, which often clashes with the sovereign rights of developing countries to manage their resources as they deem best on behalf of their citizens. In addition, the developed countries have until recently been able to exploit the genetic resources of tropical countries for agricultural and pharmacological advantage at little cost, but have now become concerned both about the continued erosion of these resources and the increasing restrictions developing countries are placing on their use.
These parallel concerns about the exploitation of biological resources expressed by both the industrialised and under-industrialised countries have led to the negotiations for a Convention on Biological Diversity.
Because of the very different interests and expectations of producer and consumer nations, these negotiations have become increasingly polarized, with little apparent willingness to compromise. On the one hand, the developed countries as consumers of biological resources are concerned about the sustainability of supplies and continued unrestricted access to genetic materials, whereas the developing countries as producer nations are more concerned with the transfer of the biotechnology to enable them to develop their resources more effectively for themselves, and the equitable distribution of benefits arising from the use of their resources. Redistribution of these benefits must provide the economic incentive to reinforce the conservation of biodiversity throughout the developing world. The obvious difficulties of achieving such redistribution have greatly retarded progress.
The effects of this increased polarity are exacerbated by basing the negotiations on the practice of unanimity rather than consensus, so that a single country with a strongly held position can insist on alternative wording being included in the text. The result is a plethora of square brackets
including such superficial niceties as "[each Contracting Party will ....] or [the Contracting Parties shall ....]".
The origin of the convention negotiations goes back to the initial drafts prepared in 1987 by IUCN in response to a Resolution adopted at its 16th General Assembly. The IUCN prototype was a relatively simple document that focused on measures to reinforce the conservation of biodiversity in situ through the provision of economic incentives based on sustainable use. Its main breakthrough, apart from galvanizing activity, was the recognition of the rights of the producer countries to share equally in the benefits of their resource use: new, innovative, funding mechanisms, such as import duties, trade tariffs, and royalty payments on the sale of commodities incorporating products of the biological resources of other countries were proposed .
In 1988, IUCN circulated a comprehensive draft amongst the participating countries at the UNEP Governing Council. This stimulated extensive discussion, resulting in acceptance of the need for an international convention which UNEP, as the appropriate inter-governmental agency, was instructed to pursue. The relatively narrow focus envisaged by IUCN was then expanded to include ex situ conservation, land races and the wild relatives of commercial crop varieties, access to technologies and scientific skills by developing countries, and the transfer of biotechnologies for developing countries to exploit their own genetic resources. Formal negotiations commenced in November 1990 with the first session of the Ad Hoc Working Group of Legal and Technical Experts, followed by five sessions of the Intergovernmental Negotiating Committee (INC) for a Convention on Biological Diversity. Each INC meeting has involved some 75 countries and lasted for eight days, representing a substantial investment of time and funding.
As with the Convention on Climate Change, the Biodiversity Convention has become a key component of the UN Conference on Environment and Development (UNCED), with the expectation of a formal instrument being ready for signature at the time of the conference in Brazil. However, with many of the most substantive issues still to be agreed, it is probable that only a framework convention will be ready for Rio, with the more contentious articles being negotiated as protocols to the convention according to a schedule to be decided at UNCED.
The effects of these delays will obviously influence the timetable for the convention coming into operation. As with other international legal instruments, countries must first sign and then subsequently ratify the convention, and it is only after the twentieth country has acceded (and this number is still subject to debate) that it comes into force. With ratification likely to be delayed until the protocols have been negotiated, it may be five years or more until the convention becomes operational. The non-governmental organizations are already voicing their concerns about the continued loss of biodiversity before the convention comes into force.
The contents of the convention
The contents of the draft convention are outlined in Table 35.1. Although the exact measures to be incorporated in the articles are still to be decided - and at the opening of the fourth session of the INC in February 1992 (only four months before UNCED) there were still over 350 disputed sections of text - certain features have already begun to emerge (at the time of writing this review the text of the convention was still under negotiation; this analysis is based on the provisions of the Fourth Revised Draft, including the compromise formulations proposed by the Executive Director of UNEP, which was presented to the Fourth Session of the INC. 6-15 February 1992).
The Objective (Article 1) of the convention is "to conserve the maximum possible biological diversity for the benefit of present and future generations and for its intrinsic value", which is to be achieved by:
The Fundamental Principles (Article 3) are extremely broad: they affirm that the conservation of biodiversity is a common concern of all people, but also stress the responsibility of states in exercising their sovereign rights to ensure that their biological resources are developed in a sustainable way. Emphasis is also given to the in situ conservation of ecosystems and natural habitats, whilst ex situ measures should preferably be undertaken in the country of origin. An important recognition is that lack of scientific certainty should not be used as a reason for postponing actions to avoid or minimize threats to biodiversity. Regarding sources of finance, countries benefiting most from the exploitation of biodiversity should contribute most to its conservation. The practices and experience of indigenous peoples in using biological resources should be recognized and rewarded.
The General Obligations (Article 4) still have much disputed text, but call on each Contracting Party to take all measures at its disposal, including national plans, policies and legislation, both individually and cooperatively, to conserve the maximum possible biological diversity within its national jurisdiction.
The Implementation Measures (Article 5) envisage the development of national strategies and programmes for the conservation and sustainable use of biological diversity, including the establishment of national bodies to implement the provisions of the Convention.
The next ten articles (Articles 5 bis to 13 inclusive) comprise the conservation core of the convention. They cover such issues as in situ and ex situ conservation, inventory and monitoring, research and training, public education, and sustainable use. The obligations on countries have been weakened by obstruction from the USA and some of the G77 states (the group of 77 non-aligned developing countries), but still include a number of positive features. For example, countries are called upon to: establish protected areas in locations requiring special conservation measures, including wildlife corridors; restore degraded ecosystems and habitats; eradicate alien species that threaten natural habitats; and to introduce legislation for the protection of threatened species, populations and varieties. Parties are also expected to undertake national surveys or their biodiversity and to maintain databases of their resources, linked into a global network. However, the convention makes it quite clear that the implementation of these obligations by developing countries is subject to the provision of new and additional financial and technical resources.
There then follow a series of articles (numbers 14 - 17 bis) that deal with access to genetic resources and the transfer of the technologies and scientific skills appropriate for their exploitation. The thrust of this section is that countries should refrain from imposing restrictions on the availability of wild genetic materials, such as breeders' or farmers' rights, but that preferential access to the research results or benefits arising from the use of genetic materials should be granted to the country of origin. At the same time, parties should undertake to provide, on mutually agreed terms, technologies appropriate to the conservation and sustainable use of biodiversity.
Aside from Articles 18 and 19 (see below), the remaining articles relate to the procedures for the establishment and operation of the convention and its protocols, and are therefore less contentious. This administrative machinery is essential for the development of an effective convention, and the procedures that have now been agreed are the most sophisticated yet seen in an environmental treaty.
Some contentious issues
Articles 18 and 19 cover the key issues of financial needs and mechanisms, upon which the viability of the whole convention depends. There is a general expectation that the developed countries must provide "adequate new and additional financial resources to enable developing countries to meet the agreed incremental costs to them of fulfilling their obligations under the Convention". There is also widespread acceptance for the establishment of a Biological Diversity Fund for developing countries to implement their obligations, but a difference of opinion about how this fund should be administered. One option is to create a 'window account' in the Global Environmental Facility (GEF) specifically for the convention, although the criteria for allocating these funds would be determined by the Conference of the Parties through a Science and Technology Committee, rather than by the three agencies in the GEF (see Chapter 32 for an outline of the GEF).
Whatever administrative mechanism is adopted, the purpose of this funding will be to empower developing countries to meet the scientific, economic and institutional requirements of the convention. It is not envisaged that the Biological Diversity Fund should provide the conduit for the economic incentives that developing countries may need to reinforce their conservation programmes: these must be derived from standard commercial practices arising from the use of biological resources negotiated by national governments.
In addition to the central issue of the financial provisions, the other contentious issues where substantive differences of opinion still need to be resolved include:
Article 13 calls for a Global List of Biogeographic Areas of Particular Importance for the Conservation of Biological Diversity and a second Global List of Species Threatened with Extinction on a Global Level, but this proposal has run into opposition. Some developing countries are against lists because of the burden they would impose if species recovery plans and site management plans had to be implemented; also, global lists could be seen to conflict with the rights of national sovereignty if designations were imposed on countries without their agreement.
On the positive side, lists would focus world attention on the sites and species of global conservation concern, and would help identify priorities for funding. The lists would represent a tangible output from the convention and provide a vehicle for a concerted conservation effort involving the non-governmental organizations. It is no coincidence that the more effective conservation conventions, such as The World Heritage Convention (WHC), Ramsar and CITES, all have lists at their core. The non-governmental agencies are lobbying hard for the retention of lists on the grounds that their removal would greatly dilute the conservation provisions (see International obligations, Chapter 31).
The key role of an active administrative structure
With many of the substantive provisions of the Convention on Biological Diversity still undecided, the sophisticated administrative structure already agreed will be vital in developing the convention to a stage where it is a truly effective international instrument; this structure is in fact a major achievement of the negotiations to date.
The vital role that an active administration plays in developing a framework convention into an effective international instrument is illustrated by existing conventions. The success of both CITES and the WHC is largely due to these conventions having active and well financed administrative structures. The comparative failure of the Bonn Convention or the Western Hemisphere Convention is in part attributable to the absence of such structures. The essential features include: a well-financed secretariat; an independent scientific committee; requirements for regular meetings of the parties and regular reporting by them to the secretariat; the involvement of outside parties (such as NGOs) in the regular meetings of the parties; and the obligation to establish or designate a national or local authority to deal with implementing the obligations of the convention.
The effectiveness of these measures arises from the tact that they keep the key issues in the public arena and on the political agenda, thereby working against political and administrative inertia. They aiso provide a catalyst for development of the broad objectives which a framework convention largely comprises into specific obligations which have some impact on the conduct of the Parties.
The Convention on Biological Diversity has many of these features. The convention establishes a Secretariat (Article 23) to arrange and coordinate meetings of the Parties; to assist the scientific committee in its work; and to maintain the global lists, if these are to be included. The functions of this body are to be carried out by an existing international organization, to be decided at the first conference of the Parties, but which in the interim will be the responsibility of UNEP. The convention establishes a scientific committee which is called the Scientific and Technology Committee; its role will be to provide scientific and technological advice as required for the implementation of the convention. There are extensive reporting requirements and meetings of the Parties are to be held at regular intervals to be decided at the first conference of the Parties. Non-governmental organizations are eligible to attend these conferences provided they have informed the secretariat and not more than one third of the Parties object to their presence.
The conservation element of the convention focuses initially on the gathering of information through national surveys and inventories, then moves on to address the benefits arising from the sustainable use of biodiversity. This information collecting exercise is to be undertaken by Country Studies detailing what is currently known about the status, threats, costs and benefits of biodiversity in each country (Table 35.2). The Country Studies will then form the basis for the development of the national plans for the conservation and sustainable use of biodiversity called for under the Implementation Measures.
At the same time, the INC needs to quantify what order of magnitude of new and additional financial resources will be required for the Biological Diversity Fund to renounce the implementation of the measures in the Convention by developing countries. The Country Studies were therefore charged with calculating the unmet financial needs of each country undertaking a survey from which the total financial requirements of the Convention could be estimated.
With the coordination of UNEP, GEF funding and the World Conservation Monitoring Centre playing a catalytic role, some 14 countries, of which 11 have reported, are undertaking Country Studies. A methodology for completing the studies was prepared by UNEP and has tour main components:
This process was expected to furnish many new data on the status and economics of biodiversity conservation and utilisation (Table 35.2). In practice, the methodology has proved to be over-ambitious so that even developed countries have had problems implementing it, although extensive new data on biological resources have been forthcoming. Of equal importance has been the recognition or the gaps in the information-base, particularly microorganisms, invertebrates and lower plants.
Table 35.3 shows the estimated unmet financial costs of the ten reporting countries. The substantial variation in the annual needs, ranging from US$1,590/km2 for Costa Rica to US$64/km2 for Kenya, reflects more the lack of standardization in the estimation than real differences in financial requirements. Clearly these needs will vary significantly between countries - for example, countries with a sound infrastructure for biodiversity conservation will require fewer funds to implement measures in the convention than those with a neglected infrastructure.
Extrapolating from these figures of unmet costs, a number of estimates have been made, using different methods, to quantify the total financial resources required by all developing countries to implement the convention (Table 35.4) (UNEP, 1992). The average of these estimates is around US$20 billion/annum. Although no more than indicative of the order of magnitude, this estimate does suggest that substantial amounts of additional funds will have to be transferred to developing countries if they are to meet their obligations under the convention.
The current level of overseas development assistance available to developing countries for the conservation of biological diversity is estimated at US$228 million, of which US$170 million is derived from bilateral aid and US$58 million from multilateral sources (UNEP, 1991). A ten-told increase in commitment from the donor countries is therefore required . Considering the current apprehensions being expressed by the developed countries about the likely levels of extra funding that the convention will need, it is politically inconceivable in the short-term that additional funding of this magnitude will be forthcoming. Although US$20 billion/annum in absolute terms is a substantial sum, representing about 27% of the total overseas aid budget, it is put into a realistic context by comparison with the $245 billion spend each year by the OECD countries on their own agricultural support programmes, which are themselves ultimately dependent upon biodiversity . With global military budgets at .some US$980 billion in 1990, or US$185 for every person on the planet, a peace dividend from the cessation of the cold war of only 2% would seem a modest amount to save the diversity of life on earth.
Based on a pragmatic assessment of what developed countries are likely to find acceptable, UNEP is proposing the establishment of a roll-over mechanism based on the GEF to provide interim funding for the convention. This would accelerate once the institutional and human capacity were in place. UNEP is proposing an increase of US$500 million/annum over the next five years, raising the current flow of funding through the GEF from around US$100 million/annum to US$600 million/annum by 1997, and thereafter accelerating to US$850 million/annum by the end
