negotiating process CBD

Negotiating process leading to the Convention on Biological Diversity : 

Negotiating process leading to the Convention on Biological Diversity Paper prepared by Dr. Iwona Rummel Bulska, Chief Environmental Law Branch, UNEP

Problems necessitating negotiations of CBD: 

Problems necessitating negotiations of CBD Need to fill gaps left by existing conventions, initiatives and strategies developed to protect genes species and ecosystems because human activity was causing the loss of biodiversity at alarming proportions; Need to address issues relating to biotechnology which were advancing manipulating the genetic wealth of biodiversity by selecting and breeding crops and livestock to meet human needs; Need to address over exploitation of resources (agriculture, forestry, fisheries) and effects of introducing invasive species; Human activity was affecting biotas, habitats, and entire ecosystems which threatened the survival of species; Threats to climate change on biodiversity, forest cover, soil erosion, nutrient loss, forest fires…

Actions taken before CBD: 

Actions taken before CBD International Board of Plant and Genetic Resources 1984 (IBPGR), was dealing with strategies for conservation of crop genetic resources and establishment of seed banks; FAO – Emergence of farmers rights as a legal counterpart of breeders rights; Debt for Nature swaps – Costa Rica, Ecuador, Bolivia and Philippines; GEF had set aside funds for bio-diversity; CMS provided protection to some species in range states; CITES was already providing a safety net for some endangered species including maximum protection for species which are very much threatened by trade in endangered species including their parts. Most countries had protected areas of various kinds;

Mandate for negotiating CBD: 

Mandate for negotiating CBD The UNEP Governing Council in its Session in 1987 convinced of a need of a global convention to preserve biodiversity adopted a decision establishing and mandating a Technical Working Group To investigate the desirability and possible form of an umbrella convention to harmonize current activities in the field of biodiversity and to address other areas that might fall under such a Convention filling gaps in current laws. The technical Working group met four times but before its first meeting since biodiversity was a scientific issue UNEP convened meeting of scientists in this field to get their views and to provide guidance to the Technical Working Group.

Meeting of known scientists in the field of biodiversity.: 

Meeting of known scientists in the field of biodiversity. The scientists exchanged views on the meaning of biological diversity; the need to conserve it, actions to be taken and their priorities and the scope of existing conventions; their report assisted the technical working group. They agreed on a global convention that would have a sound basis in science; and be truly comprehensive in scope, covering in situ and ex situ conservation and the protection of the biosphere from all significant damaging impacts, in harmony with and supplementing existing conventions in this field; be practical in defining obligations and goals, leaving the contracting parties the responsibility of achieving them; have the commitment of governments to funding at a realistic level; provide realistically for the transfer of resources, allowing its implementation by the poorer countries that are also the custodians of much of the biological heritage of the earth; Be capable of catalyzing and coordinating the efforts of Governments and other agencies under other Conventions in this field.

Technical Working Group (TWG) 1988-1990: 

Technical Working Group (TWG) 1988-1990 The report of the scientists served as a background to the work of this working group but the report only covered issues conservation of biodiversity and made no mention of such issues as access to biological resources, biotechnology, nor issues of sharing profits/benefits; 1st meeting of the TWG was attended by 25 countries, eleven developed, fourteen developing countries. It had 2 vice presidents and one rapporteur, UNEP sponsored and took the lead, other IGOs, NGOs and Convention Secretariats attended. (UNESCO, FAO,CITES, RAMSAR, CMS, IUCN, WWF). 5 main areas for consideration included the scope of the conservation, increased scientific research, economic values, financing and technology transfer to ensure protection of genetic diversity, and access to genetic resources and to relevant technologies.

Technical Working Group (TWG) 1988-1990: 

Technical Working Group (TWG) 1988-1990 The Executive Director UNEP drew the attention of the meeting to the issue of access to biological resources, and the need to consider how to use both FAO’s plant breeders’ rights and farmer’s rights to promote conservation of biological resources, another issue was the definition of preferential criteria for access by owners of genetic resources to gene banks and to biologically manipulated resources. The conclusions of the group was that there was an urgent need for a new international legal instrument because existing Conventions were sectoral and did not cover the full range of biological diversity. The UNEP Governing Council having considered the report of the group requested the Executive Director to consider additional sessions of the group to consider the socio-economic context of a suitable new international legal instrument and other measures that might be adopted. (No reference to access issue nor technology yet)

Technical Working Group (TWG) 1988-1990: 

Technical Working Group (TWG) 1988-1990 2nd Meeting TWG (February 1990), 41 countries, 23 developing countries.4 vice presidents elected and a rapporteur, with one member of the bureau from each of the five regions of the world. The UNEP Executive Director outlined basic issues to which attention must be given in order to develop recommendations on how to deal with various issues in the proposed new international legal instrument on biological diversity: the nature of the international legal instrument, global conservation needs and costs, financing mechanisms, preferential treatment for those having control over genetic resources with respect to gene banks containing them and to essential newly developed varieties obtained through breeding them, and international transfer and favorable access to biotechnology that could be usefully applied or adapted to developing countries’ needs. Not infringe on sovereignty of states on natural resources, & provide incentives for conservation without inhibiting growth or sustainable development.

Technical Working Group (TWG) 1988-1990: 

Technical Working Group (TWG) 1988-1990 Significant progress made on basic issues, discussing all points and identifying areas of basic conservation and utilization needs, as well as the need and scope of financing. The group concluded that the instrument should aim at incorporating concrete and action oriented measures for the conservation and sustainable use of biological diversity. The group also commissioned specific studies to assist the process of developing a new instrument. The studies were on global biodiversity conservation needs and costs; current multilateral, bilateral, and national financial mechanisms, access to genetic resources and biotechnology, and biotechnology issues. The studies were presented at his 3rd meeting in July 1990. Negotiations issues were considered in sufficient detail before drafting, UNEP advised the gene rich developing countries to work with technology rich developed countries to benefit both North South dialogue.

Technical Working Group (TWG) 1988-1990: 

Technical Working Group (TWG) 1988-1990 Five main areas needed to be reviewed as the 3rd Meeting was convened in order to establish their technical feasibility; conservation costs, financial modalities; technology transfer especially bio technology transfer; draft elements for the proposed convention and existing global and regional conventions, agreements and action plans on biological diversity. 3rd meeting, 78 countries. UNEP Executive Director advised the meeting that the new international legal instrument should be comprehensive in scope, covering the full range of biological diversity at the intra species, interspecies, and ecosystem levels and addressing both in situ and ex situ conservation and protection of biological diversity from all significant damaging impacts. It should be in harmony with, coordinate, catalyse and supplement existing agreements in the field & contain as much technical, financial, and administrative information with commitment for implementation.

Technical Working Group (TWG) 1988-1990: 

Technical Working Group (TWG) 1988-1990 UNEP also advised the group to identify a specific financial mechanism among the different options and consider which organization to entrust with the lead role. The mechanism which will combine funding and clearing house functions will be controlled by the parties to enable developing countries abide by the convention. The group was advised to identify mechanisms to permit access to genetic resources and relevant biotechnology techniques, processes, and products while protecting the sovereign rights of states concerning their natural resources and the legitimate interests of biotechnology investors. The socio-economic and environmental impacts of biotechnology require thorough investigation and any applications contemplated must take into account risks as well as benefits. Intellectual property rights issues should be considered. To consider having a reporting mechanisms; and clear definitions of main issues.

Technical Working Group (TWG) 1988-1990: 

Technical Working Group (TWG) 1988-1990 During the 3rd meeting the group considered the UNEP Executive Director’s guidance, the studies presented by sub committees, and a presentation of suggested elements for a global framework convention that had been prepared by UNEP in collaboration with representatives of some other members of the Ecosystems Conservation Group (FAO, UNESCO, IUCN, WWF). On financing there were still questions about costs, but the group identified GEF as a possible mechanism and agreed on a pilot financial mechanism pending a better understanding of the costs and benefits of a programme. The group also took up the issue of biotechnology transfer but because of the complexity of the issue it was referred to the next meeting. It was agreed that GATT and WIPO be sensitized on biological diversity issues as they relate to intellectual property issues. Need to balance germ plasm owners Vs technology owners.

Technical Working Group (TWG) 1988-1990: 

Technical Working Group (TWG) 1988-1990 The group confirmed that a global convention is needed & identified all elements to be included. FAO and IUCN drafted a number of articles for inclusion in the draft convention. Experts from UNEP, IUCN and FAO put all the elements proposed by the group in legal language without changing the thrust of the Government proposals. The document was circulated to Governments as a basis for discussions of the fourth meeting. 4th meeting November 1990. Seventy countries in attendance, fifty of them developing countries. This time the representation was both by legal and technical experts. Countries were however not ready to start negotiations, some developing countries were not interested in a convention for the conservation of wildlife, and the developed countries were concerned about additional financial resources. Debates were however opened and 43 countries provided written comments on what should be included or deleted.

Technical Working Group (TWG) 1988-1990: 

Technical Working Group (TWG) 1988-1990 There were disagreements on the composition of the bureau, the group got bogged down in a competition between Latin America & Caribbean and Africa on the other hand over the chairmanship. All compromise formulas were rejected; members of the group had to resort to voting Chile was elected as Chair, Kenya, Russia and Denmark as Vice Chairs. Meeting was divided in two groups one chaired by Kenya the other by Denmark. The 1st dealt with Principles and general obligations, conservation and relation to the conventions to other treaties. The 2nd group deliberated on access to genetic resources and to technology, financial resources and mechanisms. For fifteen months positions were adjusted and views were changed, frustrations continued and tensions prevailed.

Inter-governmental Negotiating Committee (INC), May 1991-May 1992.: 

Inter-governmental Negotiating Committee (INC), May 1991-May 1992. In the May 1991 Session the head of UNEP encouraged the countries to negotiate an agreement with commitment to action because they all agreed on the need for the legal instrument; to respect sovereignty of states over their natural resources; to balance the cost of conservation so that it does not fall dispropotionately on countries rich in biodiversity and to see the issue as not only environmental but developmental affecting industry, agriculture, forestry medicine and other areas. The areas deliberated on include the need for considering further rationalization and coordination of existing international legal instruments on biological diversity; equitable distribution of resources between developing and developed countries and sharing the global responsibility of conservation; establishing a relationship between conservation, utilization and property rights; public awareness and education, inventories of flora and fauna, action programs, existing measures.

Inter-governmental Negotiating Committee (INC), May 1991-May 1992: 

Inter-governmental Negotiating Committee (INC), May 1991-May 1992 The group also clarified that reference to common heritage as it relates to this negotiations should not mean collective international rights within national jurisdictions nor infringe on permanent sovereignty of states over natural resources. Third Session of INC, Madrid, Spain June-July 1991. Madrid Meeting real start of negotiations, in the course of the dialogue there were deep differences between North and South and among negotiators of each of the geographic groups. A revised version of the draft convention and background notes to guide the meeting were circulated by UNEP. The draft before countries was a consolidated draft text reduced to 30 pages from the initial 60 pages, with a number of alternatives under some articles and some seventy bracketed items, mostly related to access to finances and modalities for technology transfer. It was revised by a small group of international lawyers from regions.

Inter-governmental Negotiating Committee (INC), May 1991-May 1992: 

Inter-governmental Negotiating Committee (INC), May 1991-May 1992 The target was to adopt the Convention and open it for signature during the Earth Summit in 1992 so the negotiators had ekleven months to go. In view of time making progress was crucial, there was therefore a need of narrowing of the numerous options in the revised draft convention, reiterating however that content could not be sacrificed to expediency. It was also key to resolve wordings such as “free access”, “fair access” “equitable access”. A need to establish the link between the convention and the discussions over intellectual property rights in the then – current Uruguay Round of Negotiations of GATT. There was an option for a multilateral trust fund or the GEF it was also important to reach agreement on the magnitude and modality of financing.

Inter-governmental Negotiating Committee (INC), May 1991-May 1992: 

Inter-governmental Negotiating Committee (INC), May 1991-May 1992 Challenges hindering progress and causing delays in negotiations Polarization; Delays in translating of documents from one UN language to the other; Misunderstanding caused by inaccurate interpretation; Contentious issues such as – “on country of origin”, “country providing genetic material and/or genetic resources” had to be defined. “utilization/use of biological diversity had to be clarified” by some delegations; the Secretariat was also asked to prepare a note on the interpretation of these phrases which kept on arising (“adequate”, “new and additional” and “new and additional financial resources”. Delegates however clarified issues and invited others to debate on issues or comment on them substantively. Negotiations were very slow, it took 10 days for the discussion of 9 out of 39 articles, and there were about 160 brackets including the objective article which was all bracketed.

Inter-governmental Negotiating Committee (INC), May 1991-May 1992: 

Inter-governmental Negotiating Committee (INC), May 1991-May 1992 Serious negotiations were ongoing the brackets indicated a magnitude of their differences. The INC meeting met in September and November, and in February and May 1992. The main activities in these meetings were revising, reviewing, translating and distributing documents for the meetings and there were informal consultations going on to bridge gaps with those with disparate positions for the purpose of narrowing the difference. 4th session took place in September-October 1991, 81 countries attended 57 from developing countries, NGOs and UN organs were present. In addition to the revised draft text the fourth INC discussed two papers one clarifying on interpretation of various terms and another discussing financial resources and property rights. Chairman informed INC on changes proposed by GATT. Urged Govts to stick on positions not to keep on changing at different fora. There was a 5th to 7th Session, so many brackets, slow progress in groups.

The Plenipotentiary Conference: 

The Plenipotentiary Conference The Chairman and ED UNEP had to work non stop in informal consultations to remove the brackets. The last INC Session May 1992, 101 countries participated, 25 UN and other Organizations, just oafter UNFCCC was adopted in New york. By this time the draft CBD had few brackets. The Chairman asked countries to make use of the informal note by the UNEP-ED and himself to help with the final stages of negotiations. The ED than pointed out issues needing compromise solutions. After deliberations and informal consultationscompromise formulations were agreed on disputed issues. A compromise document was out on the 22May 1992. The Plenipotentiary conference was opened to adopt the agreed text of the convention and four resolutions one designating GEF as the interim financial mechanism for CBD, two dealing with urgent activities that must be taken in line with the provisions of the convention and pending entry into force, fourth thanking Kenya the host of the plenipotentiary conference. All this was included in the final act which was signed in the last hour of the last day of the meeting.

Lessons learnt.: 

Lessons learnt. The negotiations on the Biodiversity Convention spanned a period of more than five years. During this time, while no one disputed the fact that the loss of genetic resources, ecosystems, and species was accelerating at an alarming rate through human actions, when it came to adopting measures for halting this acceleration and trying to reverse the trend, negotiations centred on political, financial, and economic gains, and most governments had their own agendas, widely divergent and difficult to bring together. On the other hand, the discussions of technical and scientific facts were calm and relaxed, and agreements were most easily achieved at these times. When the science and economics of the issue were clear and unwavering, when the overall objectives of the convention were clearly spelled out, and when there were enough strong personalities to lead, to speak with authority, and to seek compromise, a good deal of agreement could be reached. The negotiations greatly benefited from the presence of a number of committed delegates. It was also important that the representatives of the organization serving the negotiation of the treaty took an active but objective stand, defending the rights of the environment without trespassing the limit of tolerance of the negotiating governments. .

Lessons learnt: 

Lessons learnt During these negotiations and those on climate change, new terms entered the vocabulary of environmental negotiations: the common concern of mankind as a different concept from the common heritage of mankind common but differentiated responsibilities burden sharing among developed countries intergenerational equity and intergenerational responsibility the rights of indigenous communities – in this case, in sharing he benefits of using the biological resources that they have bred over the years