Philippe Cullet

IELRC Briefing Paper 2003-1

The Convention on Biological Diversity

Since the 1972 Stockholm Conference, states have signed various regional and international agreements designed to deal with various environmental issues, from the protection of specific species, habitats or ecosystems to treaties dealing with the use and exploitation of environmental resources as well as treaties addressing some of the consequences of industrial activity, such as air pollution or hazardous wastes. However, before 1992 states had not managed to adopt a comprehensive legal framework for the conservation and management of biological resources. The Biodiversity Convention fills this gap and provides the first umbrella agreement addressing both the conservation and use of all biological resources.

The Convention was adopted in 1992 in the form of a binding framework treaty. Its three main goals are the conservation of biological diversity, the sustainable use of its components[1],  and the fair and equitable sharing of the benefits derived from the use of genetic resources[2]. The Convention reaffirms the cornerstone principle of state sovereignty over resources which grant states sovereign rights to exploit their own resources pursuant to their own environmental policies together with the responsibility to ensure that activities within their own jurisdiction or control do not cause damage to the environment of other states. The Convention, however, innovates in bringing a new qualification to the principle of sovereignty. It introduces the notion that the conservation of biological diversity is a ‘common concern of humankind’ whereby states have a duty to cooperate in the sustainable management of resources found under their jurisdiction.

The Biodiversity Convention provides a number of general obligations for member states. These include in particular a commitment to develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity. Member states must also integrate the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies. Generally, member states are required to promote the sustainable use of biological resources by integrating consideration of the conservation and sustainable use of biological resources into national decision-making, adopting measures relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity; protecting and encouraging customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements; supporting local populations to develop and implementing remedial action in degraded areas where biological diversity has been reduced; and encouraging cooperation between its governmental authorities and its private sector in developing methods for sustainable use of biological resources[3].

Conservation under the Biodiversity Convention is to be achieved in two main ways. Firstly, the Convention emphasizes in situ conservation which proposes the conservation of genes, species and ecosystems in the surroundings where they have developed their distinctive properties[4].  In situ conservation implies among other things the development of guidelines for protected areas; the regulation of biological resources; the promotion of the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings; the promotion of environmentally sound and sustainable development in adjacent areas; the rehabilitation and restoration of degraded ecosystems and the promotion of the recovery of threatened species; controlling the risks associated with the use of living modified organisms; controlling alien species; seeking compatibility between present and future use; developing necessary legislation to protect threatened species or populations; regulating any processes or activities found to have an adverse impact; and providing financial support for in situ conservation, especially to developing countries[5].

Secondly, supplementary ex-situ conservation outside the natural habitats of the protected biodiversity components is also proposed. Ex situ conservation requires the use of gene banks and zoological and botanical gardens to conserve species, which can contribute to saving endangered species. Ex situ measures are preferably undertaken in the country of origin. It includes a duty to maintain facilities for the conservation of and research on plants, animals and micro-organisms, to seek the rehabilitation of threatened species and their reintroduction into their natural habitats, to regulate the collection of biological resources from natural habitats for ex situ conservation so as not to unnecessarily threaten ecosystems and in situ populations of species, and to provide financial support for ex situ conservation, especially to developing countries[6].

The Biodiversity Convention addresses a number of other issues. It provides , for instance, a duty on all member states to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices[7]. The implementation of Article 8.j has been addressed by the Conference of the Parties (COP ) in different ways. An ad hoc open-ended inter-sessional working group was established at COP 4 to give more importance to issues related to traditional knowledge[8]. The Working Group is mandated with the task of giving advice on legal and other means of protection of the knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant to the conservation and sustainable use of biological diversity. Further, COP 5 adopted a specific programme of work which aims at fostering the participation of local and indigenous communities in all aspects of the implementation of Article 8.j.[9]

The Biodiversity Convention also provides a general legal framework regulating access to biological resources and the sharing of benefits arising from their use.   The question of access is closely related to the issue of property rights and the legal status of biological resources under international law. Access has progressively become a contentious issue as the development of genetic engineering provides new ways to acquire intellectual property rights over inventions derived from biological resources. As a result, since most of the world’s biodiversity is found in developing countries, the question of access became one of central importance in the Biodiversity Convention negotiations.

The Convention attempts to provide a framework which both respects donor countries’ sovereign rights over their biological and genetic resources while facilitating access by users. Access must therefore be provided on   ‘mutually agreed terms’ and is subject to the ‘prior informed consent’ of the country of origin[10]. Further, the Biodiversity Convention provides that donor countries of micro-organisms, plants or animals used commercially have the right to obtain a fair share of the benefits derived from use. Benefit-sharing as conceived under the Convention and the Bonn Guidelines adopted in 2002 can take the form of monetary benefits, such as access fees; up-front payments; payment of royalties; licence fees in case of commercialisation; research funding; and joint ventures. Benefit-sharing can also take the form of non-monetary benefits such as the sharing of research and development results; collaboration, cooperation and contribution in scientific research and development programmes, participation in product development; admittance to ex situ facilities of genetic resources and to databases; training related to genetic resources; and access to scientific information relevant to conservation and sustainable use of biological diversity[11].

The Convention goes further than the general regime provided under Article 15 and specifically provides for technology transfer as an invaluable instrument for the effective implementation of the Convention. In fact, Article 16 specifically recognizes the need to facilitate the transfer of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment.

The Biodiversity Convention is noteworthy in the context of international environmental agreements for offering a statement on the relationship between the management of biological and genetic resources and intellectual property rights. Article 16 clearly indicates that intellectual property rights are not to undermine the working of the Convention. The actual relationship of the Biodiversity Convention with the TRIPS Agreement is an issue which has not found a specific answer yet given the significance that a clear statement on the matter would have for the development of international law in these two fields.

The agreement on the substantive provisions of the Convention was dependent , in part , on the willingness of developed countries to provide financial resources to subsidize developing countries’ compliance with the proposed regime. As a result, the Convention requests the allocation of ‘new and additional financial resources’ to enable developing countries to meet the ‘agreed full incremental costs’ of implementing measures which fulfil the obligations of this Convention[12]. The importance of financial commitments for developing countries is illustrated by the fact that under the Convention developing countries have the option to make the implementation of their commitments dependent on the effective implementation by developed countries of their commitments related to financial resources and transfer of technology. In practice, developed countries discharge their financial commitments through the Global Environment Facility which has operated as the financial mechanism since the Biodiversity Convention ’s entry into force[13].

The institutional structure of the Biodiversity Convention includes a number of bodies. These include the COP, a Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA), and the Secretariat. The Conference of the Parties which brings together all member states is generally mandated with keeping the implementation of the Convention under review.   More specifically, it reviews progress under the Convention, identifies new priorities to be pursued, sets work plans for members, amends the Convention, creates expert advisory bodies, reviews progress reports by member nations and collaborates with other international organizations and agreements. Periodic state reports to the Conference of the Parties constitute one of the main monitoring instruments instituted under the Convention. State parties must report on the means they have adopted to implement the objectives of the Convention and the level of success of such measures.   The Conference of the Parties has launched a number of thematic programmes covering, for instance, the biodiversity of inland waters, forests, marine and coastal areas, dry lands and agricultural lands, agricultural biodiversity and cross-cutting issues such as the control of alien invasive species, strengthening the capacity of member countries in taxonomy, and the development of indicators of biodiversity loss.

The SBSTTA has been established to provide othe organs of the Convention expert advice. It is a multidisciplinary expert body which has the mandate to provide scientific and technical assessments of the status of biological diversity and of the effects of different measures taken in accordance with the Convention; identify innovative, efficient and state-of-the-art technologies and know-how relating to the conservation and sustainable use of biological diversity and advise on the ways and means of promoting development and/or transferring such technologies; providing advice on scientific programmes and international cooperation in research and development related to conservation and sustainable use of biological diversity. The Biodiversity Convention functions on a daily basis on the basis of a Secretariat based in Montreal which organizes meetings, drafts documents, assists member Governments in the implementation of programmes, and coordinates with other international organizations and collect and disseminate information.

The Biodiversity Convention provides for the adoption of protocols. Till date, only one protocol on biosafety has been adopted[14]. The Cartagena Protocol has been adopted in response to concerns over the negative environmental and health effects of some genetic engineering developments. The Protocol seeks to regulate some aspects of the transboundary movement of living modified organisms, in particular bio-engineered agricultural goods. Its aim is to ensure that a sufficient level of protection is achieved so that the transfer of living modified organisms does not entail adverse effects on the conservation and use of biodiversity. The Protocol also recognizes that the risks to human health posed by modified organisms are closely related to the risk s they pose to biodiversity. The Protocol is put in to practice through a procedure for ‘advanced informed agreement’[15]. This imposes a duty on the exporter of a living modified organism falling under the scope of the Protocol to provide at least the information listed in Annex I to the Protocol. In the case of seeds or live animals, importing countries have the right to restrict imports in order to minimize possible adverse effects on the conservation and sustainable use of biodiversity[16]. One of the most significant elements of the Protocol is that a decision to refuse an import can be taken even in the absence of full scientific certainty regarding the extent of the potential adverse effects. In the case of commodities to be used as food or feed, the procedure is generally less onerous for the exporter and does not include an obligation to notify the importing country of each shipment even though the importing country can generally restrict importations of a specific commodity.

Overall, the Biodiversity Convention is part of a web of treaties dealing with the management of species, habitats and ecosystems. A number of these treaties predate the Biodiversity Convention and carry on their mandates as before. However, even though the Convention does supplement other treaties, it provides the missing general framework for the conservation and use of all biological and genetic resources. This is what give the Convention its importance and explains the increasing attention it has been given over the past ten years.

  1. Sustainable use is defined under Article 2 of the Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, 31 International Legal Materials 818 (1992) [hereafter Biodiversity Convention] as the use of 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.
  2. Article 1 of the Biodiversity Convention, above n. 1.
  3. Article 10 of the Biodiversity Convention, above n. 1
  4. Article 2 of the Biodiversity Convention, above n. 1 defines in situ conditions as ‘conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties’.
  5. Article 8 of the Biodiversity Convention, above n. 1.
  6. Article 9   of the Biodiversity Convention, above n. 1.
  7. Article 8.j of the Biodiversity Convention, above n. 1.
  8. Decision IV/9, Implementation of Article 8(j) and related provisions, in Decisions Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Fourth Meeting, Bratislava, 4-15 May 1998, UN Doc. UNEP/CBD/COP/4/27 (1998).
  9. Programme of Work on the Implementation of Article 8(j) and Related Provisions of the Convention on Biological Diversity, in Decisions Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Fifth Meeting, Nairobi, 15-26 May 2000, UN Doc. UNEP/CBD/COP/5/23 (2000).
  10. Article 15 of the Biodiversity Convention, above n. 1.
  11. Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization, UN Doc. UNEP/CBD/COP/6/20 (2002).
  12. Article 20 of the Biodiversity Convention, above n. 1.
  13. See Instrument for the Establishment of the Restructured Global Environment Facility, Geneva, 16 Mar. 1994, reprinted in 33 International Legal Materials 1273 (1994).
  14. Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Montreal, 20 Jan. 2000, reprinted in 39 International Legal Materials 1027 (2000).
  15. Article 7 ff of the Cartagena Protocol, above n. 14.
  16. Article 11 of the Cartagena Protocol, above n. 14.