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IEL 6 readlist pr - seminar 6 notes

International Environmental Law I: Principles, Institutions & Enforcement (School of

Oriental and African Studies)

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I NTE RNATIONAL

E N V I R O N M E NTAL L AW

W EEK 6 – U SE AND C O N S E R VAT I O N OF B IODIVERSITY & A CCESS AND B ENEFIT S HARING

This class will examine the Convention on Biological Diversity’s legal regime. The first part will be devoted to
an examination of the framework convention on biodiversity, its basic principles and its development over time.
The biodiversity convention illustrates perhaps more than any other framework treaty the way in which a
loose coordination treaty can lead to a number of more specific initiatives. The second part will then focus on access
and benefit sharing, one of the main objectives of the convention whose implementation in practice has
been formalised through the Nagoya Protocol. This is a central element of the regime since it directly links
developed and developing countries and fulfils a key function in taking forward the equity dimension of the
Convention. Yet, the very mechanism remains controversial and we will thus not only discuss the existing Protocol
but also the idea of benefit sharing per se.

Required readings (uploaded on Moodle)

• Veit Koester, ‘The Convention on Biological Diversity and the Concept of Sustainable Development: The Extent
and Manner of the Convention’s Application of Components of the Concept’, in Michael Bowman, Peter
Davies and Edward Goodwin eds, Research Handbook on Biodiversity and Law 273-96 (Edward Elgar, 2015).

• Jorge Cabrera Medaglia, ‘Access and Benefit-Sharing: North–South Challenges in Implementing the Convention
on Biological Diversity and Its Nagoya Protocol’, in Shawkat Alam, Sumudu Atapattu, Carmen G. Gonzalez
& Jona Razzaque eds, International Environmental Law and the Global South 192-213 (Cambridge University
Press, 2015).

Recent developments
• Joshua Ostroff, ‘CBD COP15: Why the whole world will be watching Montreal this December’ (WWF, 21
October 2022).

• Malavika Vyawahare, ‘Humans are decimating wildlife, report warns ahead of U.N. biodiversity talks’
(Mongabay, 26 October 2022).

Other readings:

1 C ONVENTION ON B IOLOGICAL D IVERSITY

• Convention on Biological Diversity, Rio de Janeiro, 5 June 1992.

• Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social
Impact Assessment Regarding Developments Proposed to Take Place on, or which are Likely to Impact on,
Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities,
2004.

• The Tkarihwaié:ri Code of Ethical Conduct to Ensure Respect for the Cultural and Intellectual Heritage
of Indigenous and Local Communities, 2011.

Lecturer: Philippe Cullet, pcullet@soas.ac.uk

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• Mo’otz Kuxtal Voluntary Guidelines, Conference of Parties to the Convention on Biological Diversity,
Decision XIII/18, UN Doc. CBD/COP/DEC/XIII/18 (2016).

• Elisa Morgera & Elsa Tsioumani, ‘Yesterday, Today, and Tomorrow: Looking Afresh at the Convention on
Biological Diversity’, 21/1 Yearbook of International Environmental Law 3-40 (2010). [SOAS e-journals]

• Chidi Oguamanam, ‘Biodiversity, biosafety and bioprospecting’, in Erika Techera et al. eds, Routledge
Handbook of International Environmental Law 101-15 (Routledge, 2nd ed 2021). [SOAS e-book]

2 A CCESS , BENEFIT - SHARING & BIOPROSPECTING

• Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from
their Utilization, Nagoya, 29 October 2010.

• Kabir Bavikatte & Daniel F. Robinson, ‘Towards a People’s History of the Law: Biocultural Jurisprudence and the
Nagoya Protocol on Access and Benefit Sharing’, 7/1 Law, Environment and Development Journal 35-51 (2011).

• Bram De Jonge, ‘Towards a Fair and Equitable ABS Regime: Is Nagoya Leading Us In the Right Direction?’
9/2 Law, Environment and Development Journal 243-255 (2013).

• Elisa Morgera, ‘The Need for an International Legal Concept of Fair and Equitable Benefit Sharing’, 27/2
European Journal of International Law 353-383 (2016). [SOAS e-journals]

Preparation for the tutorial

• ON THE BASIS OF YOUR READING OF THE KOESTER CHAPTER, WHAT ARE THE STRENGTHS AND SHORTCOMING OF
A FRAMEWORK TREATY LIKE THE BIODIVERSITY CONVENTION?

• IS BIODIVERSITY BETTER PROTECTED SINCE THE ENTRY INTO FORCE OF THE BIODIVERSITY CONVENTION, AND
WHAT ARE THE DEVELOPMENTS THAT INDICATE POSITIVE OR NEGATIVE TRENDS?

Strengths: The Strategic Plan addresses many of the issues needed to enable Parties to effectively
implement the Convention and therefore to make the Convention a forceful instrument.

Weaknesses: There is no mechanism to implement all aspects of the Strategic Plan and limited support to
enable countries to fulfill their obligations and aspirations.

Gaps: Given the limited power and lack of mandate of the CBD to influence decisions regarding the
underlying causes of biodiversity loss (demographic, economic, socio-political, scientific and technical,
cultural and religious) and the fragmented decision-making both at national and global level, the
Strategic Plan should more clearly identify ways to ensure that "the voice of biodiversity" is heard in all
fields and sectors.

Inconsistencies: The Strategic Plan includes elements that are purely UN interagency issues (e.g. objectives
1.1, 1.2, 1.3), others focus on intergovernmental cooperation (e.g. objective 1.6), bilateral and multilateral
development cooperation (e.g. objectvies 2.2, 2.3, 2.5), while yet others are purly domestic concerns.
This
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makes it difficult for anyone to take ownership for a coherent implementation of the entire Plan as well as
monitoring of progress. One would need a clear Action Plan to go with the Strategic Plan and this need not
be a plan with new actions but perhaps an exercise of mapping how activies of the Secretariat and the UN
at large, institutions of development cooperation (both bilateral and multilateral) and implementation of
existing programmes of work and cross-cutting issues relate to the goals and objectives of the Strategic
Plan

Strengths

One track is focused on the

development of
supplementary legal
instruments for specific
problem areas, while the
other is centred on
processes designed

to provide or refine
guidelines concerning the
conservation and sustainable
use of biodiversity.

1st track

The first protocol to be

adopted was the 2000 Cartagena Protocol on Biosafety6 deriving from Article 19(3) of the CBD, which
called explicitly for the consideration of such a protocol.

SO FAR THERE ARE NO CLEAR SIGNS THAT THE ISSUE IS GOING TO BE ADDRESSED IN THAT MANNER

Finally, the issue of liability and redress for damage to biological diversity (except where such liability is
a purely internal matter) should be mentioned as a quite distinct, although extremely difficult, issue. The
COP is, according to Article 14(2) of the Convention, under an obligation to examine this issue.
However, not

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much progress has been achieved, and the question is perhaps rather whether this issue is at the point of
being more or less abandoned altogether.1

1 Decision IX/23, para. 4, the COP decided to consider at COP 10 the need for future work in this area.
However, by Decision X/9, para. b(vii), it was decided that the issue could only be considered by COP 12 in
2014 or early 2015.

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4. T allowance for public participation.42 Th.is js the only provision on public parti ipation
(( in decision-making 43 and there are no provision on access to information. Thus
Article 13 011 public education and awareness is applying a top-down approach. Hence
Conse,
biolog
conce1
envuo
devel

1...,._ =c,=-i:-===-1!'""""'-""""'."..." =J'-==-= ""-""""--""--"=0"""'-.:.=,='

While the notion of sustainable development onJy appears once in the text of the
I. 3 •

e eri ,cation o pove.~-.....- are

-=-=un==-=e ,...,The provision relates th.is taternent to [t]he extent to which deve]oping
country Partie will effectively implement their commitments under [the] Conven
tion' .33 Although the tatement i linked also to the effective ·mplementation by
developed Country Parties of their cmnmfrments under [the] Convention related to
The principle o intra- enerationa e ui i . to some extent reflecte b t e
relation hi between the conservation obli_gations as related to developino countries and
the oblio-afions of developed countries to provide new and additional financial resources
to e rnanc1a mec 1amsm or e use o eve o rn countries. hese obligation may
al o be reo-arded as an affim1atian of the tatement of the Preamble that conservation of
biological diversity is a common concern of humankind,37 which, again in combination
with the obligations to provide new and additional financial r,esource . might be
summariBed as the principle of common but differentiated responsibilities; a principle
1
not included as such in he CBD.
. ,;;;.;;.;;.;;;..._:..=-===-=-====.: .:"=-.=..======.=..::-===:=-;::.=.=-=.::=.::=-,

c ices of 1
oc_a_ co ,- nts are direct·• . ndirectly in . ,n
the objectives of the CBD. 9
3

The element/principle of integration - i.e integrating conservation arn.d sustainable

use into · , ·· . • · · . ·· • • • ·. • . , ·i , -· • • •

tably i
3

While the polluter- vs rinci le is not reflected in the CB[)40 and the recautiona
roach is included in the Preamble only,41 ome other elements, especially proced
ural eLemen , relevant in the context of sustainabl development. are reflected in a
provi ion requiring the introduction of ppropriate Environ.ment Impact Asse.ssmen.t
Procedures (E[A Procedures with regard to projects that are likely to have significant
adverse effect on biologi.cal diversity. The arne pmvi ion requi.res, where appropriate1

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THE STRATEGIC PLAN

In 2010 COP 10 adopted the ‘Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets’
with the subtitle ‘Living in harmony with nature’.66

Under Goal B, to reduce the direct pressure on biodiversity and promote sustainable use, reference is
made to, inter alia, the application of the Ecosystem Approach to achieving this goal by 2020 (Target 6).
Goal D has a clear economic and social perspective with its focus on enhancing ‘the benefits to all from
biodiversity and ecosystem services’.74 Its targets relating to ecosystem restoration and resilience were
further elaborated by a COP decision in 2010 on ecosystem restoration.75

The fifth Goal (E) is to ‘[e]nhance implementation through participatory planning, knowledge
management and capacity building’, linking the Goal, inter alia, to the target (Target 17) that by 2015
each Party will have commenced implementing ‘an effective, participatory and updated national
biodiversity strategy and action plan’.

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THE ECOSYSTEM APPROACH

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10

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• ON THE BASIS OF YOUR READING OF THE MEDAGLIA, WHAT ARE THE STRENGTHS AND SHORTCOMINGS OF
‘ACCESS AND BENEFIT SHARING’?

• DOES THE NAGOYA PROTOCOL INTRODUCE AN INTERNATIONAL LEGAL REGIME FOR ACCESS AND BENEFIT
SHARING THAT ENSURES THAT PROVIDERS AND USERS OF GENETIC RESOURCES EQUALLY BENEFIT FROM THE USE
OF
THE RESOURCES?

the North–South
divide in the
implementation of the
access and benefit-
sharing (ABS)
component of the
Convention on
Biological Diversity1
(CBD) and its
Nagoya Protocol2
(NP or Protocol) on
ABS.

The Convention
recognizes the
sovereign rights of
states over their
natural resources in
areas under their
jurisdiction.3 Its
objectives are:

1. The conservation of biological diversity.

2. Sustainable use of the components of biological diversity.

3. Fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

Although these guidelines were welcomed by the Northern countries and companies that use these
resources, some Southern countries believed that this effort was fundamentally lacking for two reasons:
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First, these guidelines are of a voluntary nature; second, they pay little attention to the measures to
be taken by the countries in which users are located (Northern countries with companies that use genetic
resources) in order to fulfill their obligations under the Convention, especially

those related to taking administrative measures and establishing policies and laws on benefit-sharing.

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THE NAGOYA PROTOCOL

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Objective

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