Categories: Biodiversity Article 5

Introduction

This article attempts to describe and analyse the process that lead to the adoption of the agreed text of the Convention on Biological Diversity (also called the CBD) on the 22 May 1992 in Nairobi. The author held throughout the process a central position. Therefore, the article does not pretend to contain a fully objective account and analysis. The article focuses on the process rather than dealing with the issues from the point of view of substance. Therefore, an in-depth understanding of some of the chapters, especially those explaining the main issues and trade-offs demands either a rather detailed knowledge of the Convention or an examination of the text in the Convention. The article is inspired by the theory of international, environmental negotiation, but will not attempt to describe the CBDN in detail, nor in every respect as in the case-studies on other international environmental conventions presented by the theory. Nor will the CBDN be examined and analysed fully in accordance with general theories about international negotiations as such, or in accordance with the conclusions drawn from casestudies, demonstrating that - whatever method is applied - international environmental negotiations are rather distinctive. 

Some of the aspects and issues of the CBDN have been analysed, already partly before the negotiation process was finished. How some of the results were achieved has also been examined. Furthermore, there are several studies on the results. But so far the CBDN does not seem to have been analysed as such.4 Although the CBD has entered into force and the Second Conference of the Contracting Parties was held in November 1995, the question of negotiating within the framework of an existing regime will not be addressed. In many ways, however, such negotiations do not differ very much from regime-building negotiations.

Factual Background
Biodiversity comprises all plant, animal and microbial species and ecosystems and processes of which they are part. According to the CBD, Art. 2 "biodiversity" means the variability among living organisms from all sources and the complexes of which they are part. Biodiversity includes diversity within species, between species and of ecosystems. However, nobody knows the exact number of species. There seems to be general agreement among scientists that: Species are now disappearing at an alarming and accelerating rate, most species are disappearing without having ever been known to science, many species have a potential economic value, the consequences for the remaining species and the ecosystems of the disappearance can not be predicted, mankind is the main cause of the disappearance or rather extermination. Some of these points are highlighted in the Preamble of the Convention. 

Most of the biodiversity of the world is located in the developing countries - or to put it more bluntly and in political terms: "The rich North needs, the poor South has it" (Frye 343). To this should be added that before the CBD came into existence, only the following representative aspects of biodiversity were protected globally: 1) areas of internationally important sites, 2) wetlands, 3) endangered species and 4) migratory species of wild animals. Action in these four cornerstones formed the basis of global international law on nature protection, namely the UNESCO World Heritage Convention, the Ramsar Wetland Convention, the Convention on International Trade in Endangered Species of World Fauna and Flora (CITES) and the Bonn Convention on Migratory Species. Before the CBD, biodiversity was never addressed comprehensively in an international legal context.

The Biodiversity Convention
The objectives of the Convention are: The conservation of biological diversity, the sustainable use of biological resources and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources by means of a) access to genetic resources, b) access to or transfer of relevant technologies and c) funding (cf Art. 1). The Convention was elaborated and negotiated by the means of ten intergovernmental meetings, the first one late 1988 and the remaining nine from the beginning of 1990 to May 1992, covering approximatey seventy working days.

The agreed text of the Convention was, as already mentioned, adopted in Nairobi on the 22 May 1992. The Convention was signed by one hundred and fifty six States and by the European Community in Rio in June, 1992. It was later signed by eleven more States, including the US which signed the last day before the period of signature expired on the 4 June 1993 (Art. 33). The Convention entered into force on the 29 December 1993, ninety days after thirty States ratified (the notion of ratification is in this presentation used also to include acceptance and approval, cf Art. 34). By May 1995 the Convention had been ratified or otherwise adhered to by the EC and by one hundred and seventeen States, among them all the Nordic Countries and most of the EU Member States (by November 1996 the figure is 162).

The first Conference of the Contracting Parties (COP) took place late 1994. An Intergovernmenta Committee of Biological Diversity (ICCBD) established and convened by the Executive Director (ED) of UNEP prepared for the COP (two meetings, one in 1993 and the other in 1994). The second COP took place in November 1995.

Explanation and Analysis of the Process

Defining exactly the process leading to the adoption of a convention is difficult. When does such a process start? In some cases, it actually starts when the first scientist sounds the alarm. And mostly, the adoption and entry into force of a convention only means the start of a new - or a continuation of the former - process. However, legally speaking it is rather easy to define the beginning of the negotiating process, because some kind of a political/governmental and in~ernationally agreed decision is needed and rules of procedure to govern the process have to be adopted. Dealing with the question of the start of a negotiation process from a substantive point of view, it is often difficult to define both the line between negotiation and prenegotiation and the line between pre-negotiation and the preparatory phase, during which non-diplomatic and non-legal issues are discussed. All stages are equally important, and they all contain elements "of combining conflicting points of view into a single decision" which is what negotiating is about (Sjostedt 262). In this description of the process the notion of "process" is used in a rather broad sense comprising not only the dynamics of the proceedings, but also some of the structural and strategic elements.

The Start of the Process

In the case of the CBD, there is good reason to consider the meeting of experts on biological diversity convened late 1988 by the ED of UNEP in consultation with Governments upon the request of the Governing Council of UNEP, and reflected in its decision 14/26 (1987) as the starting point. The mandate of the Ad Hoc Working Group of Experts on Biological Diversity was only to investigate "the desirability and possible form of an umbrella convention to rationalize current activities in this field, and to address other areas which might fall under such a convention" this field and convention being "a convention for the in situ preservation and conservation of biological diversity" at that time being developed by IUCN. Only twenty five countries were represented at the meeting, representing all regions of the world.

The meeting first agreed that even the totality of existing conventions could not cover the full range of biodiversity and that action therefore, was needed now. The Working Group also concluded, that amendments to existing conventions, for purposes of achieving "rationalisation" or consolidation of resources would be difficult and time-consuming. Most national experts favoured the elaboration of a convention, but none of them recommended a new umbrella convention that would absorb the existing conventions. The vast majority of countries, which took part in the following meetings, never questioned these two conclusions. In spite of the rather limited mandate, many of the problems, that later became the real issues were discussed or touched on, among these: The links between biodiversity conservation and development, financial resources, transfer of technology, access to genetic resources and the position of indigenous people. One of the conclusions of the meeting that was never questioned throughout the whole process, was, that pollution problems should not be dealt with in any detail by a new convention. There was wide support for the inclusion of domesticated species, a point of view that was generally accepted even before real negotiations started. There were clear signals from developing countries, that they could not accept genetic resources to be considered as common heritage of mankind. This position which prevailed and became the final result, was never really challenged (Bragdon 388 ft).

A series of recommendations, with regard to rationalising, strengthening and coordinating efforts within the existing global nature protection conventions was adopted. It is interesting to observe, that in spite of these recommendations the relationship with other conventions, which was in the centre of the UNEP Governing Council's decision, was after the second meeting almost completely forgotten and more or less stayed like that until the very end (Burhenne-Guilmin 46) However, the subject is touched upon by the Convention (cl the last chapter of the present article). A framework convention as apposed to a substantive convention or something inbetween, was also discussed.

In summary: The need for a new convention was widely supported and a draft outline of the problems that might be addressed by such a convention, was presented - all of it at an intergovernmental meeting. It is therefore only fair to consider this - the first intergovernmental meeting on biodiversity-related problems - as the starting point of the process leading to the adoption of the Convention. This discussion is not without any significance, because some of the critics of the Convention have claimed, that the shortcomings of the final result were due to the limited number of negotiating sessions (identified as the five last meetings) implying that the first negotiating session is the basis of the genesis of the language of a convention. This idea is highly questionable.

The Main Issues

The main issues are presented in the table below, indicating also the issues negotiated in each of the two Sub-Working Oroups (WGI and WOII). Some of the issues as well as other questions, were not dealt with by either of the Sub-Working Groups, e.g. Art. 2 on definitions which was handled by a special group and Art. 22, which was almost never negotiated in any formal group outside the Plenary (P). The issues can be divided into three categories according to major interests behind the issues. The first category is issue 1 and 14 being of common interest for all interest groups, although some developed countries at the beginning of the process, certainly favoured the traditional conservation approach, inter alia, by excluding domesticated species and ex situ conservation.

The second category comprising issues 2-5 can be seen as developing countries concessions or commitments, the interest from the side of developed countries being - generally speaking - to achieve as strong commitments as possible. Issues 3-5 reflect the wish of some developed countries to achieve a kind of top-down system, whereby the COP, inter alia, would set priorities according to biodiversity richness and have controlling functions (Soell 37 and Svensson 168 ff.). They did not succeed!

The third category consists of issues 6-13, being concessions or commitments of the developed countries, inter alia, to accept and respect national sovereignty over genetic resources, to provide a system whereby IPR's would not be an obstacle to, inter alia, the transfer of technology, to accept the idea of benefit sharing and rewarding the knowledge of indigenous people and to accept a special fund of the Convention governed by the COP for financial resources provided by developed countries (which did not became the final outcome!). However as far as issue 11 was concerned dealing, inter alia, with the question of a prior informed consent procedure, in connection with transboundary transfers of genetically modified living organisms, the confrontation was between the US being against such a system on the one side, and the rest of the world on the other side favouring - at that time at least - that system.

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