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CONSERVATION OF BIOLOGICAL DIVERSITY : SOME RFLECTIONS ON THE LEGAL FRAMEWORK

CONSERVATION OF BIOLOGICAL DIVERSITY : SOME RFLECTIONS ON THE LEGAL FRAMEWORK. Second South Asian Judicial Roundtable on Environmental Justice Thimphu , 30-31 August 2013. By Professor Dr. Bharat H. Desai Professor of International Law

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CONSERVATION OF BIOLOGICAL DIVERSITY : SOME RFLECTIONS ON THE LEGAL FRAMEWORK

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  1. CONSERVATION OF BIOLOGICAL DIVERSITY : SOME RFLECTIONS ON THE LEGAL FRAMEWORK Second South Asian Judicial Roundtable on Environmental Justice Thimphu, 30-31 August 2013 By Professor Dr. Bharat H. Desai Professor of International Law Jawaharlal Nehru Chair in International Environmental Law Chairman, Centre for International Legal Studies Jawaharlal Nehru University, New Delhi E-mail: desai@jnu.ac.in

  2. Main Pillars of ICL

  3. Soft Law/Hard Law • ‘Conservation’ agenda an integral part of development of international environmental law - process of ‘greening’ of international law. • Limited concerns in pre-Stockholm period: focus upon conservation of select species such as Whale. Utilitarian approach at work – economic value of living resources. • Evolution of international conservation law as reflected in select instruments that could be characterized as ‘soft law’: • 1980 World Conservation Strategy; 1982 World Charter for Nature; 1991 Caring for the Earth Strategy; 1992 Forestry Principles. • Relevant multilateral conservation conventions known as ‘hard law’: • 1971Ramsar Convention; 1972 Heritage Convention; 1973 CITES; 1979 CMS; 1992 CBD; and 1994 UNCCD

  4. World Conservation Strategy • World Conservation Strategy (1980) became a milestone for the development of international conservation law. • Conservation regarded as “positive, embracing preservation, maintenance, sustainable utilization, restoration, and enhancement of the natural environment.” • WCS regarded conservation as a processto be applied cross-sectorally and updated with new knowledge, better understanding, changes in perception and values and progress in its implementation. • Highlighted a glaring lacunae in the regulatory efforts concerning living resources as few conventions had conservation per se as a primary objective. • Focus upon tropical forests and dry lands, establishment of protected areas for the preservation of genetic resources, global commons etc. • WCS was duly revised in the form of Caring for the Earth Strategy(1991)

  5. World Charter for Nature • 1982 Charter recognized the rights of states for ‘permanent sovereignty over their natural resources’ (1962 UNGA Declaration) for nature and natural resources. • Idea of general environmental rights & obligations of states under international law. • Prescribed a normative framework of principles for regulating state behavior for the conservation of nature. • 24 principles of the Charter are couched in exhortatory language — as moral precepts — frequent use of the word shall. • Even the use of nomenclature of ‘CHARTER’ does not conceal the reluctance of states to go beyond general statements of intent rather than legal obligations perse. • Primary thrust to live in ‘harmony with nature’.

  6. Forest Principles • 1992 UNCED failed to reach a legally binding agreement over forests. • A set of guidelines, known as Forest Principles adopted. • “Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests.” • Forests got a mention in Chapter 11-Agenda 21 "Combating Deforestation”. • CSD -3 established an Open-ended Ad-Hoc Intergovernmental Panel on Forests" (IPF), under its aegis. Other successive steps: IFF; UNFF – move for a possible ‘convention’ • Process culminated with adoption of 2007 ‘Non-legally binding Instrument on Forests’

  7. Biological Diversity: Features –I • The Convention adopted in Rio de Janeiro in June 1992; entered into force on 29 December 1993; 193 States Parties. • Seeks to preserve diversity of life forms through conservation and sustainable use – for present and future generations. • Affirms conservation of biological diversity as a ‘common concern of humankind’. Reaffirms sovereign right of the States over their biological resources. • Complements existing international arrangements for conservation of biological diversity. • CBD is not ‘prefixed’ by words United Nations[e.g.UNFCCC; UNCCD] – NOT called United Nations Convention on Biological Diversity.

  8. Biological Diversity:Features –II • The CBD adopts a broad ecosystem approach to conservation thereby establishing a wider context for the protection of biological diversity. • A trade off between conservation and economic equity is at the heart of the convention and makes it unusual amongst environmental agreements. • Emphasizes national action relating to biodiversity within state jurisdiction. • The qualifying phrases such as “as far as possible and as practicable” that weaves throughout the convention text has effect of making hard shell with a soft belly.

  9. Biodiversity Convention – I • Three objectives: (i) conservation of biological diversity (ii) sustainable use of its components and (iii) equitable sharing of benefits from use of genetic resources. • Regulatory approach based upon ‘precautionary approach’ – no need for full scientific certainty as regards ‘significant reduction or loss of biological diversity’. • Seeks to partly follow ratio of the famous Trail Smelter(USA v. Canada, 1941) award: (i) significant or serious harm (ii) clear and convincing evidence. • Special emphasis upon needs of the developing countries: • (i) provision for new and additional financial resources; and • (ii) appropriate access to relevant technologies.

  10. Biodiversity Convention – II • Principle (Article 3): • States have (in accordance with the UN Charter and the principles of International Law) the sovereign right to exploit their own resources pursuant to their own environmental policies; • responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States (or areas beyond the limits of national jurisdiction). • Cooperation (Article 5): • Each Party ‘as far as possible and as appropriate’ shall cooperate… • General Measures (Article 6): • Each Party…in accordance with its particular conditions and capabilites… • Discretionary Obligations: ‘as far as possible and as appropriate’ • Articles 7 (Identification & Monitoring); 8 (In-Situ Conservation); 9 (Ex-Situ Conservation); 10 (Sustainable Use); 11 (Incentive Measures); 14 (Impact Assessment) etc.

  11. CBD: Implementation – I • Almost two decades after its inception— the CBD seems to be struggling to prove its effectiveness in bringing about changes on the ground. • Agreement primarily relies on national programmes, strategies and their implementation to achieve the treaty’s objectives. • Political will of the parties is trailing behind as well as political declarationsare not matched by an effective implementation on the national level. • Willingness of the parties to fulfill their various obligations under the convention, to cooperate especially in the areas of finance, transfer of technology and other forms of supportremain condition precedent for reasonably successful implementation of the convention.

  12. CBD: Implementation – II • The convention has sought to give effect to its objectives in the form of two protocols on very contentious issues. It reflects some success of the regime: (i) Cartagena Protocol on Biosafety to the Convention on Biological Diversity [2000] ; (ii) 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 [2010]. • New strategies adopted: (i) CBD 2010 target; (ii) Strategic Plan for Biodiversity 2011-20; (iii) Aichi Biodiversity Targets. • The issues of implementation of CBD need to be considered as a part of the process that could be measured on a ‘sliding scale’—the State Parties can be seen to be at various stages of implementation as permitted by different criteria prescribed through negotiations.

  13. The Conservation Regime – I • Desertification Convention • Convention adopted in Paris on 17 June 1994; entered into force on 26 December 1996. • The Conference of the Parties (COP) is the supreme governing body. • National Action Programs (NAP) are one of the key instruments in the implementation of the Convention. • NAP are strengthened by Action Programs on Sub-regional (SRAP) and Regional (RAP) level. • National Action Plans are developed in the framework of a participative approach involving the local communities and they spell out practical steps to combat desertification in specific ecosystems. • Migratory Species of Wild Animals • Umbrella convention for conservation of terrestrial, marine and avian migratory species: 7 Agreements; 19 MoUs • Concerned with the conservation of wildlife and habitats on a global scale. • Membership has grown to more than 110 • Migratory species threatened with extinction are listed on Appendix Iof the Convention. • Migratory species that could significantly benefit from international co-operation are listed in Appendix II. • The Convention has established several bodies to support its implementation: Conference of the Parties (COP); Standing Committee; Scientific Council.

  14. The Conservation Regime – II • World Heritage Convention • The Convention concerning the Protection of the World • Cultural and Natural Heritage was adopted by UNESCO in 1972. • To ensure the protection of their natural and cultural heritage. • Encourage international cooperation in the conservation of our world's cultural and natural heritage. • To encourage States Parties to the Convention to nominate sites within their national territory for inclusion on the World Heritage List. • Technique of ‘certification’ to attain conservations objectives. • Convention on International Trade in Endangered Species of Wild Fauna and Flora • Convention was agreed at a meeting of representatives of 80 countries in Washington DC., on 3 March 1973. It came in to force on 1 July 1975. • Provides a framework to be respected by each Party; domestic legislation to ensure CITES implementation. • CITES works by subjecting international trade in specimens of selected species to certain controls. • The species covered by CITES are listed in three Appendices, according to the degree of protection they need.

  15. The Conservation Regime – III Wetlands • The Convention on Wetlands of International Importance was the first modern inter-governmental treaty between nations aiming to conserve natural resources. • Adopted by participating nations at a meeting in Ramsar, Iran on 2 February 1971. It came into force on 21 December 1975. • The Ramsar Convention's broad aims are to halt the worldwide loss of wetlands and their conservation through wise use and management. • Tools comprise international cooperation, policy making, capacity building and technology transfer. • Headquarters is located in Gland; serviced by IUCN.

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