The CBD: An “Empty Shell” Convention?

Overview

Arguably, reversing the accelerating rates of biodiversity loss constitutes one of the world’s largest environmental challenges. The 1992 Convention on Biodiversity (CBD),[1] aiming precisely at addressing this problem, constitutes the first attempt to provide a comprehensive and inclusive framework for the conservation of biodiversity, thus trying to remedy the piecemeal and ad hoc way in which international rules of flora and fauna protection had been developed in non-binding instruments (principle 4 of the Stockholm Declaration, the 1982 World Charter for Nature, Chapter 15 of Agenda 21), as well as in a series of species or sites specific treaties (Convention on International Trade in Endangered Species,[2] Bonn Convention on the Conservation of Migratory Species of Wild Animals,[3] Ramsar Convention on Wetlands of International Importance,[4] World Heritage Convention[5]). Nevertheless, the CDB has not succeeded in arresting or reversing biodiversity loss. UNEP in its 2007 information document entitled “Compliance with and Enforcement of Multilateral Environmental Agreements (MEAs)” attributes the continued degradation of the global environment to the “failure to comply and enforce MEAs and thereby to ensure their effectiveness”.[6] However, in the context of the CBD “poor compliance is not a cause of biodiversity loss, but rather an indicator of the lack of global consensus on the critical need to protect it, thus resulting in a weak and ineffective agreement”[7] that as drafted is not likely to stem biodiversity loss. Therefore, effective flora and fauna protection rules should be sought in earlier sectoral treaties such as the CMS, CITES, Ramsar and the WHC.

Deficiencies of the CBD

a) The Problem of Legal Drafting

The UNEP document rests on the widely accepted assumption that compliance with a treaty will lead to its effectiveness and subsequently to its success. However, this assumption is not accurate. Although compliance with an international agreement might be the first step towards its effectiveness, the latter referring to the extent to which the specified objectives of a treaty are achieved, this is not always the case. Moreover, whether a treaty is “successful” in resolving the problem which it is designed to address is a separate question.[8] For instance, if an agreement is poorly drafted, as is the case with the CBD, compliance will not necessarily lead to its effectiveness, least of all to its success. From the text of the Convention several poorly drafted provisions and weaknesses can be identified. Firstly, it is not entirely clear whether the Convention is dealing with biodiversity per se (static notion) or with the protection of the evolutionary process (dynamic notion allowing some species to get extinct over time). It is only possible to infer from article 1 which lists the Convention’s objectives (conservation of biological diversity, sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources) that biodiversity per se is presumably the aim of protection of the Convention. Secondly, these objectives are negated by article 20, par.4 which emphasizes that the economic and social development and the eradication of poverty and not the protection of biodiversity are the “first and overriding priorities of developing countries”. Thirdly, the reaffirmation in the preamble of the recognition of states’ sovereignty over their biodiversity contradicts the conceptualization of biodiversity as a global common resource.[9] However, this assertion has been qualified to a certain extent by article 3, which, after confirming the principle of state sovereignty, reiterates the no-harm principle, though not in its Trail Smelter formulation.[10] Nevertheless, the bottom line remains that states are entitled to exploit biodiversity found within their territorial borders as they deem appropriate, as the Convention imposes no effective safeguards to prevent its degradation.[11] Fourthly and most significantly, attempts to impose binding substantive obligations to reduce biodiversity loss resulted in ambiguous, weak, and qualified commitments. For example, article 5 obligates parties to cooperate with others “for the conservation and sustainable use of biological diversity,” but only in “areas beyond national jurisdiction” and “as far as possible and as appropriate”. “This qualifying phrase weaves throughout the convention text like a red skein, leaving enfeebled commitments in its wake”.[12] It has transformed both articles 6 and 7, which obligate parties to integrate the conservation and sustainable use of biodiversity into national plans and policies into “non-compliable”[13] obligations since verification of compliance with this elusive standard is virtually impossible.

In the same manner, article 8 which could have constituted the nucleus of the agreement to protect biodiversity in situ, as well as article 9 dealing with ex situ conservation have been rendered “amorphous”[14] by these qualifying words. Of particular interest is article 14 which attempts to obligate (it does not actually obligate) parties to carry out Environmental Impact Assessments (EIAs) that are likely to have adverse effects on biological diversity. However, it is impossible to know if a proposed activity is going to have detrimental effects until an EIA is actually undertaken. Equally problematic is also the phrase “mutually agreed terms” attached to a number of provisions (article 15 onwards), especially those referring to access to genetic material and transfer of technology. In terms of contract law, you can agree to negotiate in the future, to act in good faith, but it is in fact difficult to “agree to agree” in the future.[15]

Arguably, these qualifying phrases express “the negotiating parties’ lack of will to adopt a meaningful agreement, emanating from political considerations based on north/south tensions that eclipsed the need for a strong, binding agreement that would commit governments to action”.[16] Instead, the CBD failing even to identify the underlying reasons of biodiversity loss creates the illusion of action. It simply provides a “comprehensive restatement of the problem” and is just a “dream for the future” as it lacks funding if it were to be implemented.[17]

Moreover, according to article 20, par.4 implementation by developing countries is conditional to implementation by developed countries of their commitments for increased financial resources and technology transfer. However, even assuming that the developing countries implement their commitments, in light of the ambiguous nature of the CBD’s substantive provisions dealing with biodiversity protection, defining their effective implementation would be an “elusive task”.[18]

b) The Problem of Effective Implementation

Unlike the UN Framework Convention on Climate Change[19] – the other binding agreement that was concluded at the Rio Conference[20] – and the UN Convention to Combat Desertification,[21] the CBD contains no provision that deals specifically with implementation. This lacuna could lead to the following assumptions: either we should better regard that the CBD is a non-binding agreement along with the other non-binding agreements of the Rio Conference[22] or that the intention of the drafters were to strengthen the agreement’s implementation through Protocols, as envisaged under article 28 or through annexes under article 30. So far, two Protocols have been adopted: the 2000 Cartagena Protocol on Biosafety[23] and the 2010 Nagoya Protocol on Access to Genetic Resources and Benefit Sharing[24], while the existing annexes were adopted together with the Agreement itself.

In 2002, the Strategic Plan adopted by the COP identified three areas of the Convention’s achievements (1. raising of awareness about biodiversity, 2. initiation of national action plans and 3. the development of the Cartagena Protocol).[25] However, it must be noted that these findings measured the procedural compliance with the Convention and not the extent to which the CBD has actually achieved its aim of conserving biodiversity (substantive compliance).

Promising Paradigms within the Biodiversity Regime

At the other end of the spectrum of the CBD’s paradigm lie a series of species and sites specific agreements that, as Professor Sands has pointed out, the CBD initially was expected to subsume or replace.[26] Arguably, the better drafting, as well as the commonality of interest among the parties of these sectoral treaties which was lacking from the CBD, enhance the possibilities that they would fulfill their specified objectives and resolve the problems they were designed to address.

a) The CITES Convention

The 1973 CITES Convention has been regarded by Lyster as “perhaps the most successful of all international treaties concerned with the conservation of wildlife”,[27] while McOmber and Zimmerman went as far to say that it is “one of the most successful international environmental law treaties in existence”.[28] It aims to protect endangered species of flora and fauna from over-exploitation by regulating or prohibiting their international trade. By adopting a flexible three-tiered approach, CITES lists species of wild flora and fauna threatened with extinction into one of its three appendices and the level of protection correlates to the imminence of extinction for a given species. CITES attempts to strike a balance between two competing ideologies. Appendix I embodies the preservationist notion that trade is the foremost threat to an endangered species’ continued existence, and that eliminating the trade will preserve the species, while Appendix II adopts the conservationist approach by allowing a sustainable level of commercial trade in endangered species.[29] Appendix III includes all species that any member nation identifies as threatened within its borders and requires the “cooperation of other parties in the control of trade”. However, it must be noted that CITES allowing a party to take a “reservation” with respect to any species listed in the three appendices, effectively exempts the nation from the Convention’s regulation of that species. The nation then is free to trade with non-party countries or with member parties claiming the same reservation. The reservation provision, though intended to protect nations whose industries relied heavily on certain wildlife trade, creates a significant loophole that can frustrate the efficacy of an Appendix I trade ban.[30] Another potential weakness of CITES is that its implementation depends on the establishment of Management and Scientific Authorities responsible for granting export, re-export, and import permits as required by its provisions. In practice, establishing an effective Scientific Authority requires significant funding and thus, proves exceptionally difficult for less developed countries to implement.

b) The CMS Convention

This shortcoming appears to have been remedied by the 1979 CMS Convention which provides a comprehensive legal framework for the conservation and effective management of migratory species. Working also on the system of appendices, it lays down a strict level of protection for endangered species listed Appendix I, while it aims to provide a template for the conclusion of further “agreements” or “AGREEMENTS” for the conservation of species listed in Appendix II.[31] Species eligible for Appendix II either have an unfavourable conservation status requiring international agreements for their conservation or have a conservation status that would benefit from international cooperation. These “agreements” or “AGREEMENTS” have a separate legal status from the CMS and most importantly can be concluded with states that are not parties to it. This pragmatic approach allows for the conclusion of agreements with high degree of reciprocal benefit tailored to the specific needs of the interested parties, thus increasing their potential effectiveness by expediting conservation action.  Moreover, the CMS by requiring that the listing of species in Appendix I will be made based on reliable evidence, including the best scientific evidence appears to remedy the shortcoming of the CITES, as it does not depend on the capacities of national scientific authorities in this regard.

c) The Ramsar Convention

The listing system was also used to protect wetlands. The 1971 Ramsar Convention, constituting the first global attempt concerned solely with the protection of habitats, aims to promote the conservation of the wetlands included in its List after designation of its parties, as well as the wise use of all other wetlands. Though the term “wise use” was regarded at the time of its adoption to be “elusive”, as it was nowhere defined in the text, its vagueness should be regarded as an advantage, since it has facilitated the progressive development of the Convention in light of evolving principles of conservation theory.[32] Indeed, according to UNEP, the Ramsar concept of wise use coincided perfectly with the aims of Agenda 21 and the notion of sustainable utilization.[33] Moreover, the pioneering nature of Ramsar, concluded one year before the Stockholm Conference,[34] should not be underestimated, as it managed to establish a new attitude in relation to wetlands that had commonly been treated as “wastelands”.[35] Indeed, many of its parties have even gone beyond the minimum obligation of designating one site (with the UK being particularly prominent in this regard)  and the fact that there is currently a case about wetland protection pending before the ICJ between Costa Rica and Nicaragua[36] testifies to the importance that states nowadays attribute to wetlands.

d) The WHC

Another sites-specific treaty is the 1972 WHC. Though not exclusively concerned with the conservation of biodiversity, the Convention is of significance for flora and fauna as it establishes a system of collective protection of natural heritage of outstanding universal value. Its innovation lies in that aims to “internationalise” the system of protection of natural heritage by removing valuable sites from an exclusively domestic jurisdiction, while respecting at the same time the sovereignty of states.[37] Moreover, following the paradigm of the Ramsar Convention, the Convention established upon designation by its parties the “World Heritage List”, but also the “List of the World Heritage in Danger”.

Concluding Remarks

Overall, it seems that the CBD despite its name has not managed to provide a comprehensive framework for the protection of biodiversity. Being almost devoid of substantive content, with “caveated phrasing and vague clauses diluting its obligations to the point of meaninglessness”,[38] the CBD has proven to be ineffective in stemming biodiversity loss, as according to Adams its provisions are “non-compliable”. As a result, effective biodiversity protection should be sought in earlier sectoral sites or species specific treaties. These treaties, though not perfect, have withstood the test of time and have worked reasonably well within the limited parameters within which they operate. Arguably, it is difficult to evaluate their effectiveness given the inherent difficulties in measuring flora and fauna because of the lack of data or inconsistencies in existing data, the lack of baselines and the high cost of data collection. Moreover, there is also the issue of causation or correlation that must be taken into account. For instance, if the condition of a species improves or deteriorates, it may be because of effective or ineffective treaty implementation or it may be simply correlated to that.[39] However, these sectoral treaties appear to be not only better suited to achieve their specified objectives, but also they seem to be fit for their purpose, namely to resolve the problems they were designed to address.

ENDNOTES

1. U.N. Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 142, 31 ILM 818 [hereinafter CBD].
2. U.N. Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243 [hereinafter CITES].
3. U.N. Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 19 I.L.M. 15 [hereinafter CMS].
4. U.N. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Feb. 2, 1971, 996 U.N.T.S. 245 [hereinafter the Ramsar Convention].
5. U.N. Convention Concerning the Protection of World Cultural and Natural Heritage, Nov. 23, 1972, 1037 U.N.T.S. 151 [hereinafter WHC].
6. United Nations Environment Programme [UNEP], Governing Council, Compliance with and Enforcement of Multilateral Environmental Agreements, U.N. Doc.  UNEP/GC/24/lNF/23 (Dec.29, 2007) [hereinafter UNEP document].
7. R. Adam, Missing the 2010 Biodiversity Target: A Wake-Up Call for the Convention on Biodiversity?, 21 Colorado Journal of International Environmental Law and Policy, 2010, 123.
8. E. Brown-Weiss, Understanding Compliance with International Environmental Agreements: The Baker’s Dozen Myths, 32 U. Rich. L. Rev., 1998-1999,  1555; J.-G. Speth, International Environmental Law:  Can it Deal with the Big Issues?, 28 VT. L. REV. 2004 (“The issue with these treaties [MEAs] is not weak enforcement or non- compliance, it is weak treaties themselves”).
9. Lakshman D. Guruswamy, The Convention on Biological Diversity: A Polemic, in “Protection of Global Biodiversity” 351, eds. Lakshman Guruswamy & Jeffery A. McNeely, 1998.
10. According to the Trail Smelter arbitral decision (United States v Canada), “no State has the right to use or permit the use of its territory in such a manner as to cause injury in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence” (sic utere tuo ut alienum non laedas). However, article 3 CBD omits the provisos of gravity and foreseeability when incorporating this seminal international environmental law principle.
11. supra, note 7; C. Stone, Is Environmentalism Dead?, 38 ENVTL. L. 19, 2008, 39 (“Of course, the most important criteria of success is the bottom line . . .has the environment gotten better or worse?”).
12. supra, note 7.
13. Ibid.
14. Ibid.
15. However, it must be acknowledged that in contrast to the qualified and conditional nature of the CBD’s substantive provisions for the protection of biodiversity, provisions of a technical nature (establishment of educational programs for biodiversity education, promotion of research in the conservation and sustainable use of biological diversity) are more focused and specific.
16. supra, note 7.
17. A. Hubbard, Comment: The Convention on Biological Diversity’s Fifth Anniversary:  A General Overview of the Convention – Where It Has Been, and Where Is It Going?, 10 Tulane Environmental Law Journal, 1997, 415, at p.445; Lee A. Kimball, The Biodiversity Convention: How to Make It Work, 28 VAND.  J. TRANSNAT’L  L. 763,  stating that  the Biodiversity Convention “arguably falls into a new category of recent, comprehensive, global conventions on environmental matters that define objectives, if not legal obligations”; P. G. Le Prestre, The CBD at Ten: The Long Road to Effectiveness, 5 Journal of International Wildlife Law and Policy, 2002, 269; C. Wold, The Futility, Utility and Future of the Biodiversity Convention, 9 Colorado Journal of International Environmental Law and Policy, 1998, 1.
18. supra, note 7.
19. U.N. Framework Convention on Climate Change (UNFCCC), May 9, 1992, 31 I.L.M.  849.
20. United Nations Conference on Environment and Development (UNCED), Rio de Janeiro, 3-14 June 1992.
21. U.N. Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, June 17, 1994, 33 I.L.M. 1328.
22. The soft law documents of the Rio Conference were the Rio Declaration on Environment and Development, Agenda 21 and the Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (Forest Principles).
23. Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 39 ILM 1027 (2000).
24. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, COP 10 Decision X/1 X/1.
25. Strategic Plan for the Convention on Biological Diversity, Sixth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity (COP 6), Decision VI/26.
26. Sands, Principles of International Environmental Law, Cambridge: CUP, 3nd ed., 2012, p.453.
27. S. Lyster, International Wildlife Law: An Analysis of International Treaties Concerned with the Conservation of Wildlife, Grotius Publications Ltd., 1985.
28. E. McOmber, Problems in enforcement of the Convention on International Trade in Endangered Species, 27 Brooklyn  Journal of International Law, 2001-2002, 674;  M. Zimmerman, The Black Market for Wildlife: Combating Transnational Organized Crime in the Illegal Wildlife Trade, 36 Vanderbilt Journal of Transnational Law, 2003, 1657.
29. J. Carey, Improving the efficacy of CITES by providing the proper incentives to protect endangered species, 77 Washington University Law Quarterly, 1999, 1291.
30. P. Sand, Whither CITES? The Evolution of a Treaty Regime in the Borderland of Trade and Environment, 1 Journal of Environmental Law 29, 1997; S. Young, Contemporary Issues of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Debate over Sustainable Use, 14 Colorado Journal of International Environmental Law and Policy, 2003, 167; J. Carey, Improving the Efficacy of CITES by Providing the Proper Incentives to Protect Endangered Species, 77 Washington University Law Quarterly, 1999, 1291; M. Giordano, The Internationalization of Wildlife and Efforts Towards Its Management: A Conceptual Framework and the Historic Record,  14 Georgetown International Environmental Law Review, 2002, 607.
31. S. Lyster, The Convention on the Conservation of Migratory Species of Wild Animals, 29 Natural Resources Journal, 1989, 979; R. Osterwoldt, Implementation and Enforcement Issues in the Protection of Migratory Species. Two Case Studies: Waterfowl in North American, Seals in Europe, 29 Natural Resources Journal, 1989, 1017.
32. M. Bowman, The Ramsar Convention Comes of Age, 42 Netherlands International Law Review, 1995, 152; D. Farrier, and L. Tucker, Wise Use of Wetlands Under the Ramsar Convention: A Challenge for Meaningful Implementation of International Law, 12 Journal of Environmental Law, 2000, 21; B. L. Kruchek, Extending Wetlands’ Protection under the Ramsar Treaty’s Wise Use Obligation,  20 Arizona Journal of International and Comparative Law, 2003, 409; R. C. Gardner, Perspectives on Wetlands and Biodiversity: International Law, Iraqi Marshlands and Incentives for Restoration, Yearbook: Colorado Journal of International Law and Policy, 2003, 1.
33. UNEP Observer at the 1993 Kushiro Conference, PLEN. C.5.4 (Rev.) p. 3.
34. United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972.
35. Bowman, supra, note 32.
36. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua).
37. F. Francoini, Thirty Years on: Is the World Heritage Convention ready for the 21st Century?, 12 Italian Yearbook of International Law, 2002, 13; F. Francoini, Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity, 25 Michigan Journal of International Law, 2004, 1209; O’Keefe, R. World Cultural Heritage: Obligations to the International Community as a Whole, 53 International and Comparative Law Quarterly, 2004, 189; M. Papaioannou, World Heritage Convention Turned 40: Achievements and Prospects for the Future, MEPIELAN E-Bulletin (05.04.2013-Critical Forum Section).
38. D. Humphreys, The Elusive Quest for a Global Forests Convention, 14 Review of European Community and International Environmental Law, 2005, 1.
39. For instance with regard to the Montreal Protocol on Substances that Deplete the Ozone Layer, the recovery of the ozone layer may correlate to the implementation of the Protocol, but might not necessarily be caused by it.