Biodiversity and
Natural resources
Noor Israth Jahan
Assistant Professor
Dept. of Law, University of Chittagong.
Biodiversity
What is Biodiversity
International Protection of Biodiversity (Terrestrial)
CITES
CBD
Cartagena Protocol
Nagoya Protocol
International Protection of Biodiversity (Marine)
UNCLOS
CBD
What is Biodiversity?
Umbrella concept
Genetic diversity
Species diversity
Ecosystem diversity
Until the 1980s, international instruments addressed ‘wildlife’ or ‘wild
fauna’ and ‘flora’ and focused on species and habitats.
Biodiversity is a more inclusive term.
CBD definition
‘the variability among living organisms from all sources including, inter alia,
terrestrial, marine and other aquatic ecosystems and the ecological complexes
of which they are a part; this includes diversity within species, between
species and ecosystems’.
Threat from human activity
IUCN Red List
https://www.iucnredlist.org/
Global Biodiversity Loss (Source:
Natural history Museum)
International Protection of
Biodiversity
Stockholm Declaration
‘Man has a special responsibility to safeguard and wisely manage the heritage
of wildlife and its habitat, which are now gravely imperiled by a combination
of adverse factors. Nature conservation, including wildlife, must therefore
receive importance in planning for economic development.’
Principle 4 see also principles 2,3 and 7
1982 World Charter for Nature
Paragraphs 2 and 3
Agenda 21
Chapter 15
Rio Declaration, principle 7
WSSD
Goal of reducing the rate of biodiversity loss by 2010
Convention on the Trade in
Endangered Species (CITES)
Convention on the Trade in Endangered Species (1973)
Purpose of treaty to protect endangered species by
regulating their trade and to ensure that international
trade in specimens of wild animals and plants does not
threaten the survival of the species.
Import, export and re- export controls
Trade regulated through appendices
CITES cont.
Appendix I
Species threatened with extinction
Trade prohibited except in limited circumstances
Appendix II
Species for whom trade must be controlled in order to
avoid over-utilization
Permits issued by Management Authority of State
Appendix III
Species protected in at least one country which has
requested assistance from CITES
Permits issued by Management Authority of State
Convention on Biological
Diversity (CBD)
Negotiated under UNEP and signed in 1992
Umbrella regime for the protection of biological diversity
First treaty to cover
Conservation of biological diversity and the sustainable use of
biological resources
Access to biotechnology
Safety of activities related to GMOs
Background to negotiations
Today 196 parties (US not a party).
COP 15 (Montreal 2022)
Supplements other biodiversity-related Conventions.
Framework character
Recognition of sovereign rights of states over natural
resources (preamble, Articles 3 & 5)
Also recognition of biodiversity as a common concern of
humankind (preamble).
Linkage between sovereign right and common concern
through sustainability concept.
Jurisdictional scope- components of biodiversity within
national jurisdiction + processes and activities carried
out within state jurisdiction and control.
Regulates marine biodiversity subject to the rights and
obligations of states under the law of the sea.
Key provisions (CBD)
Conservation and sustainable use of biological diversity – contains
qualified commitments and their implementation depends on
particular national circumstances and priorities of individual parties
and resources available to them.
‘As far as possible and as appropriate’
In-situ and ex-situ conservation
Definitions – Article 2
‘In-situ conservation" means the conservation of ecosystems and natural
habitats and the maintenance and recovery of viable populations of species in
their natural surroundings and, in the case of domesticated or cultivated
species, in the surroundings where they have developed their distinctive
properties.’
‘Ex-situ conservation" means the conservation of components of biological
diversity outside their natural habitats’.
See also articles 8 and 9
https://www.cbd.int/convention/articles/?a=cbd-08
https://www.cbd.int/convention/articles/default.shtml?a=cbd-09
CBD Key Provisions cont.
The Ecosystem approach
‘a strategy for the integrated management of land, water and
living resources that promotes conservation and sustainable
use in an equitable way.’ (COP VII)
Impact assessment and the minimization of adverse risks
Article 14
1. Each Contracting Party, as far as possible and as appropriate,
shall:
(a) Introduce appropriate procedures requiring environmental
impact assessment of its proposed projects that are likely to have
significant adverse effects on biological diversity with a view to
avoiding or minimizing such effects and, where appropriate, allow
for public participation in such procedures;
Obligation to introduce EIA as far as appropriate
Access to genetic resources and
fair and equitable benefit sharing
Genetic materials extracted from plants and animals provide the
basis of research by, for example, pharmaceutical, chemical and
agricultural seed companies.
Article 15
‘(1) Recognizing the sovereign rights of States over their natural
resources, the authority to determine access to genetic resources rests
with the national governments and is subject to national legislation.
(2) Each Contracting Party shall endeavour to create conditions to
facilitate access to genetic resources for environmentally sound uses by
other Contracting Parties and not to impose restrictions that run
counter to the objectives of this Convention.’
Necessary components: Prior informed consent, Mutually Agreed Terms
(MAT), fair and equitable benefits.
No elaboration of the meaning of terms ‘fair and equitable’.
For example, sharing the results of research and development, benefits
arising from commercial and other utilization of resources, participation
in scientific research etc.
Two key questions for national implementation:
*Who decides upon access to and utilization of genetic
resources?
*Who has the right to receive payment?
Intra-state economic dimension - Brazilian objections to
earlier draft ‘common concern of all peoples’.
Article 8(j) linked with Article 15: still indigenous
communities rarely receive sufficient compensation and
adequate benefits.
Access and benefit sharing
(continued)
Nagoyya Protocol on Access to Resources and the Sharing of Fair and Equitable
Benefits Arising From Their Utilization, 2011
- Elaborates the term ‘fair and equitable benefits’, how to activate prior informed consent,
directs the states for the development of model contractual clauses of benefit sharing and
mutually agreed terms, establishing national focal points and competent national
authorities, Access and Benefit-Sharing Clearing House etc.
ABS mechanisms in other international instruments:
*ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO
Convention 169)
*International Convention on the Protection of New Varieties of Plants
*FAO’s International Treaty on Plant Genetic Resources for Food and Agriculture.
Non-binding instruments i.e.
Bonn Guidelines, UN Declaration on Indigenous Rights, FAO International Code of Conduct for
Plant Germplasm Collecting and Transfer which call for providing ABS mechanisms in national
laws .
Components of ABS Arrangements:
advance payments for samples, royalty provisions, non-
monetary benefits such as capacity- building, and access to
technology.
i.e. traditional healers of Samoa acknowledged in a
benefit- sharing agreement concerning the development
of prostratin, an anti- AIDS compound derived from the
Samoan native mamala tree. Sharing of revenues.
Traditional knowledge and
protection concern
The link between traditional knowledge and access to
resources is inextricable.
The use of plao-noi by Thai traditional healers to treat
ulcers, and the use of argyapaachya by the Kani people in
South India to suppress fatigue and reduce stress.
Article 8(j) requires each party as far as possible, as
appropriate, and subject to its national legislation, to
“. . . respect, preserve and maintain knowledge, innovations
and practices of indigenous and local communities…”
Several models of TK protection: the public domain model,
the trust model, the commercial use model and the private
property model
Several international instruments support the development
of TK legislation and procedures.
Countries i.e. Brazil, Ethiopia, India and the Philippines
have national laws to protect the TK rights of indigenous
peoples.
Conventional intellectual property laws or sui generis laws
Level of access and benefit sharing depends on the national
model of IP laws regarding TK.
Intellectual property rights and Traditional
knowledge: Biopiracy/Bioprospecting
Conflictual relationship between TRIPS agreement of
the WTO and Biodiversity Convention.
TRIPS Agreement mandates no requirement to fulfill the
basic principles of the CBD i.e. prior informed consent,
benefit-sharing etc. in obtaining patents on inventions
based on genetic resources from the developing
countries.
Biodiversity-rich countries hold that TRIPs Agreement
accommodates private rights which overrule the
sovereign rights recognized by the CBD.
TK does not qualify as a
patentable right…
TK holders may not meet patent requirement though they
contribute to development of a new product. They may
lack documented evidence and may not fulfil the
requirement of ‘non-obviousness’.
Bio-piracy allegations/ biocolonialism/ bioprospecting
Biopiracy allegations arose:
- a US patent granted for the healing properties of turmeric,
known for centuries in India;
- US patent on the ‘ayahuasca’ plant, considered sacred and
used for medicinal purposes by Amazon’s indigenous people.
Hoodia, an appetite suppressant capitalized on the TK of
San people with meagre sharing of benefits. (8%).
other concerns:
• The requirement of genetic uniformity for patentability
which leads to loss of agro-biodiversity.
• Patents can make seeds more expensive due to royalty
payments, restrictive contracts and increased
commercialization.
• Displacement of traditional varieties and depletion of
biodiversity.
Biosafety and the Cartagena
Protocol
Regulation of Genetically Modified Organisms (GMOs)
Debate over long-term impacts
Rapid growth of GMO crops
Protocol to the CBD
CBD calls on parties to ‘consider the need for the safe
handling of GMO’s resulting from biotechnology’.
Negotiations commenced in 1995
Conflict between Nth and Sth
Cartagena Protocol Key
Provisions
Article 3(G), definition of Living Modified Organism (LMO)
‘any living organism that possesses a novel combination of
genetic material obtained through the use of modern
biotechnology’
Article 1, adoption of precautionary approach
‘In accordance with the precautionary approach contained in
Principle 15 of the Rio Declaration on Environment and
Development, the objective of this Protocol is to contribute to
ensuring an adequate level of protection in the field of the
safe transfer, handling and use of living modified organisms
resulting from modern biotechnology that may have adverse
effects on the conservation and sustainable use of biological
diversity, taking also into account risks to human health, and
specifically focusing on transboundary movements’.
See also Risk Assessment Procedure – Article 15 and Annex
III
Nagoya-Kuala Lumpur Supplementary
Protocol on Liability and Redress to
the Cartagena Protocol on Biosafety
(2010)
Article 1 – objective
The objective of this Supplementary Protocol is to contribute to the
conservation and sustainable use of biological diversity, taking also into
account risks to human health, by providing international rules and
procedures in the field of liability and redress relating to living modified
organisms
Article 3 – Scope
This Supplementary Protocol applies to damage resulting from living
modified organisms which find their origin in a transboundary movement.
The living modified organisms referred to are those:
Intended for direct use as food or feed, or for processing;
Destined for contained use;
Intended for intentional introduction into the environment.
Marine Biodiversity
Marine Biodiversity - UNCLOS
Primary instrument for the setting of the rights and
obligations of states for the conservation and
sustainable use of marine living resources.
Article 192- States have the obligation to protect and
preserve the marine environment
Article 194(5) - obligation to prevent, reduce and
control pollution
Issue of fisheries
Protects rights of coastal states to exploit marine living
resources
Obligation to protect and conserve marine populations
through the adoption of management plans and catch
allowances.
UNCLOS Cont
Background: Cod Wars
Fishery rights now governed by UNCLOS zones
Coast to 12 NM – Territorial Sea
Exclusive rights (Article 2)
12 – 24 NM - Contiguous Zone
Exclusive rights (Article 33)
Up to 200 NM – Exclusive Economic Zone (EEZ)
Article 56- rights, jurisdiction and duties of coastal state
Articles 61- conservation of the living resources i.e. setting Total
Allowable Catch (TAC)
Article 62 - utilization of living resources within EEZ
200 NM + High Seas
Article 87 freedom to fish high seas
UNCLOS Zones (Map)
UNCLOS Cont
Article 61 – Conservation of Living Resources
1. The coastal State shall determine the allowable catch of the living resources in its exclusive
economic zone.
2. The coastal State, taking into account the best scientific evidence available to it, shall ensure
through proper conservation and management measures that the maintenance of the living resources
in the exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastal
State and competent international organizations, whether sub-regional, regional or global, shall
cooperate to this end.
3. Such measures shall also be designed to maintain or restore populations of harvested species at
levels which can produce the maximum sustainable yield, as qualified by relevant environmental and
economic factors, including the economic needs of coastal fishing communities and the special
requirements of developing States, and taking into account fishing patterns, the interdependence of
stocks and any generally recommended international minimum standards, whether subregional,
regional or global.
4. In taking such measures the coastal State shall take into consideration the effects on species
associated with or dependent upon harvested species with a view to maintaining or restoring
populations of such associated or dependent species above levels at which their reproduction may
become seriously threatened.
5. Available scientific information, catch and fishing effort statistics, and other data relevant to the
conservation of fish stocks shall be contributed and exchanged on a regular basis through competent
international organizations, whether subregional, regional or global, where appropriate and with
participation by all States concerned, including States whose nationals are allowed to fish in the
exclusive economic zone.
Marine Biodiversity - CBD
Provisions of CBD apply to marine resources
Article 3
States have the responsibility to ‘ensure that activities
within their jurisdiction or control do not cause damage to
the environment of other states or of areas beyond the
limits of national jurisdiction’.
COP II identified need to address the issue of
conservation and the sustainable use of marine and
coastal resources.
Jakarta Mandate on Marine and Costal Biological
Diversity (1995)
CBD Cont
Relationship between CBD and UNCLOS
Both agreements apply to the conservation of marine
biodiversity
Article 22 of CBD
(1) The provisions of this Convention shall not affect the
rights and obligations of any Contracting Party deriving
from any existing international agreement, except where
the exercise of those rights and obligations would cause a
serious damage or threat to biological diversity.
(2) Contracting Parties shall implement this Convention
with respect to the marine environment consistently with
the rights and obligations of States under the law of the
sea.
Fisheries Case Law
Southern Blue Fin Tuna Cases (1999)
Australia and New Zealand initiated arbitration proceedings under part
XV of UNCLOS alleging that Japan had breached its obligations under
Art 64 and 116-119 of UNCLOS in relation to the conservation and
management of Southern Blue Fin Tuna Stock.
Issue of a unilateral experimental fishing programme aimed at
gathering data on the stock.
All parties signatories to the 1993 Convention for the Conservation of
Southern Blue Tuna.
International Tribunal for the Law of the Sea (ITLOS)
Ordered parties to ensure that they did not exceed their catch limits.
Later merits hearing did not proceed
Fisheries Case Law Cont
Estai Case (1998)
Dispute between Canada and Spain
Coastal Fisheries Protection Act (Canada)- a broad
prohibition on the fishing in the High seas, outside the
Exclusive Economic Zone of Canada.
North Atlantic Fisheries Organisation (NAFO)’s Regulatory
Area.
9 March 1995 – Spanish fishing vessel (Estai) was boarded
on the high seas by Canadian Costal Fisheries and charged
with offences under Canada’s Coastal Fisheries Protection
Act.
Spain initiated proceedings in the ICJ however Court
held it did not posses the requisite jurisdiction
Protection of Marine Biodiversity
Beyond jurisdiction
At Rio+20 States committed themselves "to address, on an
urgent basis ... the issue of the conservation and
sustainable use of marine biological diversity of areas
beyond national jurisdiction, including by taking a decision
on the development of an international instrument under
the United Nations Convention on the Law of the Sea.”
Focus on the High Seas - nearly two-thirds of the ocean lies
outside State control
UNGAs 69/292 and 72/249
Areas of focus
Marine Genetic Resources
Area based management tools
EIA
Capacity building and technology transfer
High Seas Treaty (2023)
Biodiversity Beyond National Jurisdiction Treaty (BBNJ)
Agreement under UNCLOS
Four themes (as per previous slide)
Marine Genetic Resources – Key issue of benefit sharing
(monetary and non-monetary)
Area based management tools – creation of substantial
MPAs to protect against the loss of marine biodiversity and
genetic resources
EIA
Capacity building and technology transfer
Established a COP
Currently there are 60 signatories to the Treaty
