It was adopted by the intergovernmental negotiating committee. This body was set up to finalize the text for signature. During their fifth session in Nairobi, from May 11 – May 22 1992, the text was adopted. It was open for signature in Rio de Janeiro in June. They took out the convention and placed it at the headquarters of the United Nations for more signatures. It was open to June 4, 1993. It entered into force 29 December 1993 and currently has 196 state parties. Ghana signed in 12 June 1992 and ratified in 29 august 1994.
It goes well beyond conservation of biological diversity per se and comprehends such diverse issues as sustainable use of biological resources, access to genetic resources, the sharing of benefits derived from the use of genetic material, and access to technology, including biotechnology. Previous strategies and conventions have been concerned with ensuring, on an ad hoc basis, the ‘rational’ or ‘wise’ use of common property or shared resources such as fish and marine mammals, with the protection of migratory species and their habitats or with preventing over-exploitation of certain species of wild fauna and flora through control of international trade. The adoption in 1983 by an FAO Conference of an Undertaking on Plant Genetic Resources which aimed to ensure that these should be explored, preserved, evaluated, and made available for plant breeding and scientific purposes which are considered further below preventing over-exploitation of certain species of wild fauna and flora through control of international trade. This nascent regime, however, did not represent a comprehensive global approach to protection of the earth’s biodiversity and did little to protect resources found wholly within a state’s national jurisdictional limits.
The Convention on Biodiversity is therefore the first attempt to deal with the lacunae arising from the old system by establishing a more comprehensive and inclusive regime for conservation of biodiversity as such. While recognizing the intrinsic value of biodiversity to humankind and its future survival, at the same time it also allows for sustainable use of biological resources and incorporates many of the new conservatory principles and strategies that have developed in contemporary environmental law.
This convention has three main goals-article 1 of the convention
- Seeks to conserve biological diversity
- Seeks to ensure the sustainable use of its components
- Ensuring fair and equitable sharing/distribution of the benefits arising from the use of genetic resources.
This is a typical framework convention. A framework convention is one that sets out board general obligation for the parties and leave the specific compliances of the principles to the states.
Innovations introduced by the convention
- This convention makes no room for reservations.The Convention on Biological
Diversity has done this by excluding all reservations. The exclusion is absolute. The reason behind this strict
rule is probably the desire to preserve the balance between the various obligations created by the Convention
which would otherwise be threatened if Parties had the right to make reservations - Introduces in situ and ex situ measures of conservation
- Acknowledgement of the relevance of traditional knowledge to the resolution of global problems. The convention places an obligation on governments to respect, preserve and maintain traditional cultural practices that are compatible with conservation and sustainable use requirements. Many cultures have traditions in which local communities establish protected areas, such as the sacred groves in India and Africa. Maintaining such traditions can make a great contribution to conserving biodiversity and ensures that management is done where it matters most—at the local level.
- It provides for an elaborate international regime for access to genetic resources. The Convention on Biological Diversity is the first international instrument which acknowledges a State’s sovereign rights over the genetic resources within its jurisdiction and the resulting authority to regulate and control access. In exercising their sovereign rights to determine access to genetic resources, Contracting Parties are to endeavor to facilitate access by other Contracting Parties. This suggests that Parties are to extend special treatment to each other and this may serve as an incentive for other States to join the Convention. Parties are to take measures with
the aim of sharing in a fair and equitable way benefits arising from the commercial or other use of genetic resources with the party that has provided such resources. Each party is to facilitate access to genetic resources for environmentally sound uses by other parties, and must not impose restrictions that run counter to the Convention’s objectives. Article 15(2) provides that genetic resources referred to in Articles 15, 16 and 19 are ‘only those that are provided by Contracting Parties that are countries of origin of such resources or by Parties that have acquired the genetic resources in accordance with this Convention’. Thus, the provisions on
access and benefit sharing do not apply to genetic resources acquired before the Convention’s entry into force - Access to transfer of technology and the distribution of the benefits for biotechnology. Articles 16–19 deal with transfer of technology in several different senses. First, the parties undertake in Article 16(1) to provide or facilitate access and transfer to other parties of technologies ‘that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment’. Second, parties must take measures ‘with the aim that’ parties which provide genetic resources have access to and transfer of technology which makes use of those resources. Third, parties must take measures to provide for the ‘effective’ participation in biotechnology research of those providing genetic resources, and to ‘promote and advance priority access on a fair and equitable basis’ to the results and benefits of biotechnologies based on the provision of genetic resources.
Transfer of technology provisions in earlier treaties, such as the 1982 UNCLOS, have usually been controversial, on several grounds. There is first the reluctance of governments to compel companies and private parties to transfer technologies that may not be commercially available; second there have been objections to the terms on which any transfer will take place, particularly if this is not at market prices; and, third, there is the question of intellectual property rights which may be lost if transfer is required.
The Biodiversity Convention attempts to deal with some of these issues. Transfers under Article 16(1) must be on ‘fair and most favorable terms’, and in other cases on ‘mutually agreed’ terms. Governments are specifically required by Article 16(4) to ensure that the private sector facilitates access to, and joint development and transfer of, technology. However, for some governments, such as the USA, the suggestion of compulsion placed on industry is undoubtedly objectionable and has, inter alia, inhibited its ratification of the Convention.
Intellectual property issues are important because the transfer of patented technology is specifically envisaged. Article 16(2) provides that access and transfer ‘shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights’, while Article 16(5) calls for the parties to cooperate to ensure that intellectual-property rights ‘are supportive of and do not run counter to’ the objectives of the Convention. It appears to be an attempt to satisfy both sides; intellectual property rights are to be respected but only insofar as they assist rather than hinder implementation of the Convention.
However, behind these references there remain unresolved questions about the scope of intellectual property rights and whether they benefit the providers of genetic resources or only those who make use of them. Natural genetic resources, or genetically altered organisms which result from experimentation, are not necessarily always patentable or a source of legally protectable rights. Discovery of a new species of fish for example, could not be patented; like most natural resources it is simply a commodity which can be bought and sold by anyone. Patentable rights may arise either in respect of a new process for isolating and developing substances, or for new uses for existing substances or possibly in respect of a substance which had no previous known existence. The extent to which these principles enable the products of biotechnology to be protected will vary, and remains controversial in national patent systems. It is, for example, still uncertain whether genetically altered organisms can be patented as such, or how far patent law will always protect new uses for existing substances
- For the first time in a global treaty, a financial mechanism (global environment facility-GEF) was established to provide financial resource to developing countries to facilitate performance of their environmental obligations. Article 20(2) lays down a clear obligation on the parties, not just an ‘undertaking’, to provide ‘new and additional financial resources to enable developing state parties to meet the agreed full incremental costs to them of the implementing measures which fulfill the obligations of this Convention’.
Under Article 20(4) which determines that ‘the extent to which developing country parties will effectively implement their commitments under this Convention will depend on the effective implementation by developed country parties of their commitments under this Convention related to financial resources and transfer of technology’. The close linkage of performance to ‘conservation obligations with provision of funding’ is apparent but developing states use of any funds provided is, under Article 21(2), subject to monitoring and evaluation on a regular basis; both the COP and the funding mechanism (GEF) play a role in this since the latter has to ensure that measures for which funding is sought conform to policies, strategies, and priorities determined by the former. In effect this modifies Article 3, since developing states are thus only free to decide their own environmental polices if they do not apply for funding.
- Institutions and mechanisms to ensure compliance