The current framework for international governance of biodiversity: Is it doing more harm than good?

Review of European Community and International Environmental Law

Volumn 19, Issue 2, 2010, Pages 139-149

  Jóhannsdóttir, Adalheidur ^a   Cresswell, Ian ^b   Bridgewater, Peter ^c  

^a UNIVERSITY OF ICELAND   (Iceland)

^b CSIRO   (Australia)

^c NONE

Author keywords

[No Author keywords available]

Indexed keywords

BIODIVERSITY; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY; GLOBAL PERSPECTIVE; GOVERNANCE APPROACH; INTERNATIONAL LAW; LEGISLATIVE IMPLEMENTATION; POLICY MAKING; STRATEGIC APPROACH; STRUCTURAL CHANGE; TARGETING;

EID: 78650207855     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2010.00673.x     Document Type: Article

References (130)

1. We use the term international biodiversity law to include international and regional treaties on biodiversity, although we deal only with global treaties in this article.
2. See, inter alia, reflected in several decisions of the Conference of the Parties (COP) to the Convention on Biological Diversity (Rio de Janeiro, 5 June 1992) (CBD), such as in Decision VI/26, Strategic Plan for the Convention on Biological Diversity, printed in Report of the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/6/20, 27 May 2002), Annex I, paras 2 and 11, and also the Hague Ministerial Declaration of the Conference of Parties to the Convention on Biological Diversity, Annex II to the same report, ibid., para. 11.
3. See on CBD programmes on biodiversity, inter alia: Decision II/10, Conservation and Sustainable Use of Marine and Coastal Biological Diversity, printed in Report of the Second Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/2/19, 30 November 1995), Annex II, particularly Annex II to the Decision;
4. Decision IV/5, Conservation and Sustainable Use of Marine and Coastal Ecosystems, Including Programme of Work, printed in Report of the Fourth Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/4/27, 15 June 1998), Annex, Programme of Work on Marine and Coastal Biological Diversity;
5. Decision V/3, Progress Report on the Implementation of the Programme of Work on Marine and Coastal Biological Diversity (Implementation of Decision IV/5), printed in Report of the Fifth Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/5/23, 22 June 2000), Annex III;
6. Decision VI/3, Marine and Coastal Biological Diversity, printed in Report of the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/6/20, 23 September 2002), Annex I;
7. Decision VII/5, Marine and Costal Biological Diversity, Review of the Programme of Work on Marine and Costal Biodiversity, printed in Report of the Seventh Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/7/21, 13 April 2004), Annex.
8. This includes the Ecosystem Approach as developed by the CBD COP. See further Decision V/6, Ecosystem Approach, printed in Report of the Fifth Meeting of the Conference of the Parties, ibid., Annex III; and Decision VII/11, Ecosystem Approach, printed in Report of the Seventh Meeting of the Conference of the Parties, ibid., Annex.
9. See, inter alia, Millennium Ecosystem Assessment, 2005: Ecosystems and Human Well-being. Synthesis (Island Press, 2005), at 1-131;
10. Global Biodiversity Outlook 2 (Secretariat of the Convention on Biological Diversity, 2006) (GBO-2), at 9-73;
11. Global Biodiversity Outlook (Secretariat of the Convention on Biological Diversity, 2010) (GBO-3), at 9-94, and particularly at 9-13.
12. See CBD, n. 2 above.
13. A reference to legal operationalization is often used to describe what is needed in law and legal systems and what should be avoided in order for objectives and targets to become part of enforceable law.
14. See further, e.g., A. Jóhannsdóttir, The Significance of the Default. A Study in Environmental Law Methodology with Emphasis on Ecological Sustainability and International Biodiversity Law (Uppsala University, 2009), at 19-28 et passim.
15. See Millennium Ecosystem Assessment, 2005, n. 5 above, at 84-87 et passim.
16. In January 2010, the Inter-Academy produced a clear statement on these issues, as a contribution to discussions throughout 2010. The Inter-Academy is a global network of the world's science academies.
17. See further Communiqué of the Inter Academy Panel Biodiversity Conference (13-14 January 2010), available at .
18. This was the United Nations Conference on Environment and Development, which was held in Rio de Janeiro 3-14 June 1992.
19. United Nations Framework Convention on Climate Change (New York, 9 May 1992).
20. United Nations Convention on Combating Desertification (Paris, 17 June 1994).
21. See Decision VI/26, n. 2 above, Annex I, para. 11.
22. Johannesburg Plan of Implementation (UN Doc. A/CONF.199/20, 4 September 2002), Resolution I, Annex, para. 44.
23. See United Nations Millennium Declaration (A/RES/55/2, 18 September 2000), para. 23;
24. Implementation of the United Nations Millennium Declaration (A/57/270, 31 July 2002), Annex, at 30; and Report of the Secretary-General on the Work of the Organization (A/62/1, 31 August 2007), Annex II, at 68.
25. See further Decision IX/8, Review of Implementation of Goals 2 and 3 of the Strategic Plan, reported in Report of the Conference of the Parties to the Convention on Biological Diversity on the Work of its Ninth Meeting (UNEP/CBD/COP/9/29, 9 October 2008), Annex I;
26. Decision IX/9, Process for the Revision of the Strategic Plan, ibid.
27. Environmental law methodology (ELM) was originally developed by Dr Staffan Westerlund, Professor at the Faculty of Law, Uppsala University, Sweden.
28. See, inter alia, S. Westerlund, En hållbar rättsordning. Rättsvetenskapliga paradigm och tankevändor (Iustus förlag AB, 1997);
29. Miljörättsliga grundfrågor 2.0 (IMIR Institutet för miljörätt. Åmyra förlag, 2003);
30. S. Westerlund, 'Theory for Sustainable Development. Towards or Against?', in H.C. Bugge and C. Voigt (eds), Sustainable Development in International and National Law (Europa Law Publishing, 2008), at 47. ELM has been further developed for international law research.
31. See, e.g., J. Ebbesson, Compatibility of International and National Environmental Law (Iustus förlag AB, 1996), and A. Jóhannsdó ttir, n. 7 above.
32. See S. Westerlund, Miljörättsliga grundfrågor 2.0, ibid., at 16-32 et passim.
33. See A. Jóhannsdóttir, n. 7 above, at 68.
34. Ibid., at 93-96, 98 and 109 et passim.
35. See S. Westerlund, Miljörättsliga grundfrågor 2.0, n. 18 above, at 33-39 et passim.
36. See A. Jóhannsdóttir, n. 7 above, at 78.
37. There are furthermore many important regional treaties that belong to international biodiversity law; they will, however, not be considered in this article. Moreover, the application of particular global treaties, including, inter alia, the General Agreement on Tariffs and Trade (Geneva, 30 October 1947) and the Agreement Establishing the World Trade Organization (Marrakesh, 15 April 1994), influences the possibilities of States to exercise their own environmental policies progressively, including particular policies in the sphere of biodiversity law.
38. S. Lyster, International Wildlife Law: An Analysis of International Treaties Concerned with the Conservation of Wildlife (Grotius Publications, 1985) provides a good overview of these treaties.
39. See further L.D. Guruswamy, 'The Convention on Biological Diversity: A Polemic', in L.D. Guruswamy and J.A. McNeely (eds), Protection of Global Biodiversity: Converging Strategies (Duke University Press, 1998), at 351-359.
40. International Convention for the Regulation of Whaling (Washington, 2 December 1946).
41. Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar, 2 February 1971).
42. Convention for the Protection of the World Cultural and Natural Heritage (Paris, 23 November 1972).
43. Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 3 March 1973).
44. Convention on the Conservation on Migratory Species of Wild Animals (Bonn, 23 June 1979).
45. United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982).
46. See UNCCD, n. 13 above.
47. Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New York, 4 December 1995).
48. Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Montreal, 29 January 2000).
49. International Treaty on Plant Genetic Resources for Food and Agriculture (Rome, 3 November 2001) (ITPGR). The treaty, together with the CBD, forms a particular international control system for the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use;
50. see, inter alia, ITPGR, Articles 1, 15, 19 and 20 of the former, and CBD, n. 2 above, Articles 2, 15 and 16.
51. The CBD, UNCLOS, UNCCD, Straddling Fish Stock Agreement and the International Seed Treaty contain, in many instances, rather general framework provisions that are open for interpretation and balancing of competing interests; the Ramsar Convention, CITES, World Heritage Convention and the CMS all contain general principles but also rely upon listings of the object that is eventually to enjoy the conservation; the Cartagena Protocol, n. 35 above, establishes an advance informed agreement procedure (prior informed consent (PIC) system).
52. This is in line with Article 19 of the CBD, n. 2 above, and the Cartagena Protocol, n. 35 above, and, as such, the pair forms a particular international control system for biodiversity and living modified organisms.
53. See CBD, n. 2 above, Article 22, on the relationship with other treaties in this field.
54. P. Bridgewater, 'Whales and Wailing', 55:178 International Social Science Journal (2003), 555.
55. This is particularly the case for the CBD and UNCLOS. See, on balancing norms, J. Ebbesson, n. 18 above, at 86-89 and 103-135.
56. See, inter alia, UNCLOS, n. 32 above, CMS, n. 31 above, and UNCCD, n. 13 above.
57. See, however, the wording of CBD, n. 2 above, Article 8(h): 'Prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species';
58. see also the Ramsar Convention, n. 28 above, Article 4(2): 'Where a Contracting Party in its urgent national interest, deletes or restricts the boundaries of a wetland ⋯ it should as far as possible compensate for any loss of wetland resources, and in particular it should create additional nature reserves for waterfowl ⋯'. On the other hand, the Whaling Convention, n. 27 above, has de facto exercised strict conservation policies, and is by some thought to have exceeded its original mandate of proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.
59. The exceptions are the Straddling Fish Stocks Agreement, n. 34 above, and the Cartagena Protocol, n. 35 above.
60. See A. Jóhannsdóttir, n. 7 above, at 121-125.
61. For information on the mandates for cooperation, see Mandates for Cooperation (Secretariat of the CBD, undated), available at .
62. Some treaties, such as the International Seed Treaty, n. 36 above, stipulate cooperation with other relevant treaty bodies and international organizations, and in this case with the CBD COP; see further CBD, n. 2 above, Article 19(3).
63. Decision VII/26, Cooperation with Other Conventions and International Organizations and Initiatives, printed in Report of the Seventh Meeting of the Conference of the Parties, n. 3 above, Annex.
64. See also, inter alia, Ramsar COP-10, Resolution X.11 (2008), Partnerships and Synergies with Multilateral Environmental Agreements and Other Institutions, printed in Resolutions of the Tenth Meeting of the Conference of the Parties to the Convention on Wetlands (28 October-4 November 2008).
65. See GBO-3, n. 5 above, at 9-13.
66. The Straddling Fish Stocks Agreement, n. 34 above, relies upon cooperation through regional and sub-regional fisheries management organizations and arrangements.
67. The COPs sometimes bear other names, e.g. General Assembly or Governing Body, although have similar or identical powers and functions as COPs.
68. See; e.g., the International Seed Treaty, n. 36 above, Article 20, and CITES, n. 30 above, Article XII.
69. See, for instance, CBD, n. 2 above, Article 25 and the CBD's Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA).
70. See further CBD, ibid., Article 23;
71. Ramsar Convention, n. 28 above, Article 6;
72. World Heritage Convention, n. 29 above, Article 8;
73. CITES, n. 30 above, Article XI;
74. CMS, n. 31 above, Article VII;
75. UNCCD, n. 13 above, Article 22;
76. Cartagena Protocol, n. 35 above, Article 29 (the same COP as the CBD's), and International Seed Treaty, n. 36 above, Article 19.
77. See, e.g., Cartagena Protocol, n. 35 above.
78. See further on the CBD COP mandate for furthering CBD's scope, A. Jóhannsdóttir, 'The Convention on Biological Diversity: Supporting Ecological Sustainability or Prolonging Denial?', 1 Nordic Environmental Law Journal (2010), 81.
79. For a thorough coverage on COPs and their development in MEAs, see R.R. Churchill and G. Ulfstein, 'Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law', 94:4 The American Journal of International Law (2000), 623;
80. also V. Röben, 'Institutional Developments under Modern international Environmental Agreements', in J.A. Frowein and R. Wolfrum (eds), Max Planck Yearbook of United Nations Law (Kluwer Law International, 2000), 363.
81. See further, inter alia, World Heritage Convention, n. 29 above, Articles 11 and 29;
82. CITES, n. 30 above, Articles VIII and XI;
83. CBD, n. 2 above, Articles 23 and 26;
84. Cartagena Protocol, n. 35 above, Article 33;
85. International Seed Treaty, n. 36 above, Articles 19 and 21. Regarding fisheries, States report to the UN Food and Agriculture Organization, as well as to sub-regional and regional organizations which are involved with fisheries.
86. See, for instance, D. Mouat et al. (eds), Opportunities for Synergy among the Environmental Conventions: Results of National and Local Level Workshops (Secretariat of the United Nations Convention to Combat Desertification (UNCCD), 2006), at 3.
87. For example, under the CBD the due date for the fourth National Report was 30 March 2009: Decision VIII/14, National Reporting and the Next Global Biodiversity Outlook, printed in Report of the Eighth Meeting of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/8/31, 15 June 2006), para. 4. On 30 May 2010, 111 of 193 contracting parties had submitted the fourth report. For information on receipt dates,
88. see CBD Secretariat, National Reports and NBSAPs (CBD Secretariat, undated), available at . The situation is rather different under the Ramsar Convention. The return rate was 97.2% before COP-7 (1999); 91.9% before COP-8 (2002); 85.1% before COP-9 (2005); and 90.4% before COP-10 (2008). For information on the percentage,
89. see Ramsar Secretariat, National Reports Submitted to the Conference of the Contracting Parties (Ramsar Secretariat, undated), available at .
90. See, e.g., Ramsar Convention, n. 28 above, Article 6(2)(c)(d) and (f).
91. See Decision VII/26, n. 47 above, Annex, para. 2.
92. Ibid., para. 3, including cooperation with CITES, Ramsar, CMS and the World Heritage Convention.
93. Decision VIII/16, Cooperation with Other Conventions and International Organizations and Initiatives, printed in Report of the Eighth Meeting of the Parties, n. 59 above, Annex I, paras 12-16, broadening the previous mandate (Decision VII/26, n. 47 above).
94. Decision IX/27, Cooperation Among Multilateral Environmental Agreements and Other Organizations, printed in Report of the Conference of the Parties to the Convention on Biological Diversity on the Work of its Ninth Meeting (UNEP/CBD/COP/9/29, 9 October 2008), Annex I.
95. These are the UNFCCC, CBD and the UNCCD.
96. Decision IX/27, n. 64 above, Annex I, para. 12.
97. See GBO-3, n. 5 above, at 9.
98. Ibid., at 20 et passim.
99. See also International Environmental Governance, Report of the Executive Director (UNEP/IGM1/2, 4 April 2001).
100. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel, 22 March 1989).
101. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam, 19 September 1998).
102. Stockholm Convention on Persistent Organic Pollutants (Stockholm, 22 May 2001).
103. Possibilities of Enhancing Cooperation and Coordination among MEAs in the Biodiversity Cluster (TemaNord 2009:537) (Nordic Council of Ministers, 2009), at 21 et passim.
104. Ibid., at 15 and 21 et passim.
105. Ibid., particularly at 19-22 et passim.
106. Proceedings of the Governing Council/Global Ministerial Environment Forum at its Eleventh Special Session International Environmental Governance: Outcome of the Work of the Consultative Group of Ministers or High-Level Representatives. Note by the Executive Director (UNEP/GCSS.XI/11, 3 March 2010).
107. Ibid., para. 12.
108. Management Review of Environmental Governance within the United Nations System (JIU/REP/2008/3) (UN Joint Inspection Unit, 2008), Recommendation 1, at 7.
109. See Decision IX/8, n. 17 above.
110. See Decision IX/9, n. 17 above.
111. See Decision IX/8, n. 17 above, para. 2.
112. Ibid., para. 6.
113. See further GBO-3, n. 5 above.
114. As an example from a national context, relating to the implementation of the Ramsar Convention into the Icelandic legal system, A. Jó hannsdóttir points out in 'Breytingar á mörkum fridlýstra svæda med áherslu á Ramsarsvædi', 79:1-4, Náttúrufrædingurinn (2010), 68, that important Ramsar resolutions seem to be unknown to the legislator and are not visible in the legislation or taken into account in planning or decision making. On the other hand, many States consider resolutions (and other identical COP decisions) as only marginally relevant as they, in many instances, are reflecting soft law, which, according to traditional international law theory, does not legally bind States. Their potential legal relevance should, however, not be underestimated.
115. See Decision VI/26, n. 2 above, Annex, Appendix, Point 6.
116. See further on this new legislation, I.L. Backer, 'Naturmangfoldloven - en milepel i norsk miljølovgivning', 1 Nordic Environmental Law Journal (2009), 35.
117. See A. Jóhannsdóttir, n. 84 above, at 68.
118. Ibid., at 70-71.
119. T. Koetz et al., 'The Role of the Subsidiary Body on Scientific, Technical and Technological Advice to the Convention on Biological Diversity as Science-Policy Interface', 11 Environmental, Science & Policy (2008), 505.
120. See, for instance, Options for Improving the Science-Policy Interface for Biodiversity and Ecosystem Services: Note by the Secretariat (UNEP/IPBES/3/2, 13 April 2010).
121. See on these issues several aspects tackled by O.R. Young, H. Schroeder and L.A. King (eds), Institutions and Environmental Change: Principal Findings, Applications, and Research Frontiers (MIT Press, 2008).
122. Agreement on the Conservation of African-Eurasian-Migratory Waterbirds (The Hague, 16 June 1995).
123. Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (New York, 17 March 1992).
124. See, e.g., Report of the Ad Hoc Working Group on Administrative Reform to the Forty-First Meeting of the Standing Committee (SC41-33, 1 May 2010).
125. See Global Biodiversity Outlook, n. 5 above
126. See further Management Review of Environmental Governance within the United Nations System, n. 78 above, para 2, a follow up to the United Nations 2005 World Summit Outcome (A/RES/60/1, 24 October 2005).
127. Delivering as One, Report of the Secretary-General's High-Level Panel (UN General Assembly, 9 November 2006).
128. Ibid., at 6, and also further coverage on the same issues at 18-22.
129. See Management Review of Environmental Governance within the United Nations System, n. 78 above
130. Ibid., at iii.