ESPM 169: Notes on CBD

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ESPM 169: Notes on CBD

September 19, 2002

Importance: most important international document re biodiversity; first comprehensive, ecosystems based international environmental agreement

- drives national policies, especially in countries which did not have BD policies in place; provides a basis for legitimation and empowerment of various groups.

- reflects the "art of the possible" in international relations

1. Structure

- preamble: not legally binding, but sets forth broad concerns and motivations - conservation of BD a common concern of humankind; importance of sovereignty

- articles

- annexes - administrative details

- amendments

- adoption - before signature - signifies participant's acceptance of basic text

- accession, acceptance, ratification (accession - after entry into force; adoption and acceptance different modes of ratification for countries with different legal system)

- parties and signatories

- soft law and hard law

2. Questions

- see answers

3. Other points

- principle: sovereignty

- in situ cf. ex situ conservation

- conservation and sustainable use

- groups of countries: G77; OECD (ECE)

- technology: includes biotechnology (hence, interest from biotech industry)

- use of terms like “environmentally sound management” and “prior informed consent”

- relationship with other international agreements, law: intellectual property rights - art. 16:5; WTO - Article 22 - shall not conflict unless significantly damages BD

- clearing house mechanism

- SBSTTA: Subsidiary Body on Scientific, Technical and Technological Advice

- strengthening: COPs, protocols, reports

- signatories and ratifications

4. Assessments from Text

- generally considered weak; no fixed targets, timetables or lists

Guruswamy - "polemic"

- CBD fails on three grounds: rejects concept of sustainable development by prioritizing economic development (preamble gives that priority to LDCs); denies state responsibility for degradation of global commons; repudiates common heritage of mankind argument

- McGraw: does its complexity erode issue salience?

- doesn't address globalization: impact of trade etc. on BD

5. Conclusions re international law?

Enforcement of IEL: diplomatic and public pressure, withdrawal of membership benefits, trade measures (sanctions associated with Basel, CITES, Montreal), other sanctions; ICJ not really involved; diplomatic pressure most common, through COPs, direct channels, pointing out of reputation and participation effects; withdrawal of benefits associated with the regime

6. Development

- subsequent meetings

- Biosafety protocol

- IPRs and TRIPs

- traditional and local knowledge

- invasive species