You are on page 1of 9

Biodiversity as Political Game Author(s): Simone Bilderbeek Reviewed work(s): Source: Politics and the Life Sciences, Vol.

12, No. 2 (Aug., 1993), pp. 265-272 Published by: Association for Politics and the Life Sciences Stable URL: http://www.jstor.org/stable/4235962 . Accessed: 26/11/2012 03:41
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp

.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Association for Politics and the Life Sciences is collaborating with JSTOR to digitize, preserve and extend access to Politics and the Life Sciences.

http://www.jstor.org

This content downloaded by the authorized user from 192.168.52.73 on Mon, 26 Nov 2012 03:41:54 AM All use subject to JSTOR Terms and Conditions

GUI 2EP,UK. 10 Watford Close,Guildford, PLS, 12(2),265-272,BeechTree Publishing, Surrey COMMENTARY

Biodiversity

as

Political

Game

Simone

Bilderbeek

Netherlands (The World

National Conservation

Committee Union),

for The

IUCN Netherlands

OF BIOLOGICAL diversity is a condition for human survival. We are but one CONSERVATION species sharing this earth with millions of other species, and we are mainly, if not entirely, dependent upon these other species for our food, clothes, housing, and many other basic needs. So long as human beings are incapable of eating inorganic material, we must conserve the earth's biological resources, and thus their diversity. Seen from this perspective, the Convention on Biological Diversity (adopted in Nairobi, 1992) is the most ever negotiated. Yet, most people important convention would not have heard of this convention if former U.S. President George Bush had not been so kind as to refuse to sign it. This refusal created a lovely political scandal over the biggest ever conference intergovernmental the United Nations Conference on Environment held, and Development or the "Earth Summit," (UNCED,

June, 1992, Rio de Janeiro). And it created immortal fame for a convention that would undoubtedly already have been forgotten if all states at Rio had silently signed it. of biodiversity Failure to appreciate the importance is partly due to the main defenders of biodiversity themhas selves?the nature conservationists. Biodiversity long been interpreted as simply "species conservation." the conservation of biodiversity was seen Consequently, of national park managers and bioloas a responsibility gists only. Apart from that, the nature conservationists defended biodiversity mainly, if not only, on basis of the In their view, the intrinsic intrinsic value of biodiversity. and thus it stood value of biodiversity was indisputable, and miles above potential economic political arguments This attitude is idealisagainst conserving biodiversity. tic, but impractical. Economic and political decision-mawith moral kers have never been very impressed is usually based upon arguments; their decision-making and economic political arguments. And there are a large of addition to intrinnumber important arguments?in value?for sic conserving biodiversity, including ecologiscientific, educational, cal, genetic, social, economic, and aesthetic1 value. cultural, recreational, This essay begins with a discussion of the motivation to negotiate a convention on biological diversity. It goes on to discuss some of the key political disputes that saw These the floor at the negotiations for this convention. took place in two working groups. Working negotiations with the "real stuff* of the convention, the dealt I Group for the conservation and sustainable use of guidelines as The well as some essay biodiversity, legal questions. provides an overview of these issues. Most of my attention, however, will be focused on the key political debates concerning which were dealt with by biodiversity,

Simone Bilderbeek is Legal Project Officer at the Netherlands National Committee for IUCN, Plantage Middenlaan 2B, 1018 DD Amsterdam, The Netherlands. She has studied both international and national law at the University of Amsterdam. As a representative of an international nongovernmental organization (NGO), she was involved in the negotiations towards the Convention on Biodiversity and in the UNCED process. Ms Bilderbeek is currently serving as a member of the convention's Expert Panel 3 on Technology Transfer and Financial Issues as co-coordinator of the international NGO Task Group on Biodiversity; as secretary of the international NGO Working Group on Institutional Change, and as a member of the Coordinating Group of the Alliance of Northern People for Environment and Development. She is author of several articles on biological diversity and related matters. She organized the International Environmental Law Conference (The Hague, 1991), on the basis of which she edited Biodiversity and International Law (IOS Press, 1992).

This essay does not necessarily reflect the official position of the Netherlands National Committee for IUCN or any other organization.

Politics and the Life Sciences August 1993

0730-9384/93/020265-8

SUS08.00 ? Beech Tree Publishing 1993

265

This content downloaded by the authorized user from 192.168.52.73 on Mon, 26 Nov 2012 03:41:54 AM All use subject to JSTOR Terms and Conditions

Biodiversity Working Group IL This group dealt with issues like access to genetic intellectual resources, biosafety, mechanism of the and financial the property rights, convention. is one of the key causes resources; this overexploitation of the loss of species and ecosystems. for the biodiverRegretfully, neither the negotiations as nor a UNCED whole, turned out to sity convention, be the forum to discuss these underlying causes of global For many reasons, not least environmental degradation. of industry and other powerful the strong influence these actors in the UNCED economic preparations, too little attention causes far throughout underlying got the process. Even a modest reference to the impact of was deleted during trade on biodiversity international while the word "debt" never even the negotiations,5 appeared in one of the drafts. behind the ConSo what were the real motivations One clear motivaBiodiversity? aid for developing multilateral countries to help them conserve their biodiversity. And to this the donor countries were willing to contribute multilateral aid. First, they were under political pressure from their own citizens to protect beautiful animals. And second, they had become aware of the potential value of industry. This genetic resources for their biotechnology the decreated a unique situation at the negotiations: to that was of interest had countries something veloping other countries (see Tewolde Berhan, 1992). As a repvention on Biological tion was to provide NGO (nongovernmental of a Colombian resentative stated two years ago: "do not forget that organization) but the South has the the North has the technology, 'biom (Mayr, 1992). The South needed the North, both needed to conserve their for the money and technology investments for the and long-term diversity biological necessary to use the elements of biodiversity in a sustainable way. And the North needed the South, as they were under strong pressure from the public as a whole and from NGOs in particular to ensure that beautiful animals were protected. Of course, there were also some common goals belike the need to ensure that genetic hind the convention, research was for medical and agricultural information protected for the benefit of present and future generthat this it should be acknowledged ations. However, for the bioargument contained no political motivation at least not for the industrialized diversity convention, countries. After all, genetic information was more or less were started and the "free to grab" until the negotiations that the benefits the objective introduced convention arising out of the utilization of genetic resources should be equitably shared!

Biodiversity

and a Diversity

of Interests

The people who, informally, inspired the United Nations Environment to initiate negotiations Program (UNEP) were concerned about a convention on biodiversity on all aspects of about the lack of a global agreement Prior to 1992, there were a number of biodiversity.2 conventions that dealt with biodiversity in specific reof conventions that dealt with and a number gions,3 However, there was no specific aspects of biodiversity.4 convention cover to biodiversity as a whole. Since global the decline of biodiversity was considered a global problem, since its causes are present in all countries, and since its effects touch upon the economic, social, scientific, and existence values of all peoples, a global convention was considered necessary to conserve biodiversity. This motivation might seem satisfactory in itself, but Too it does not yet explain why one needs a convention. often, it is presumed that a challenge such as the need that one needs a for conservation implies automatically convention. Thus, it has been argued that there is a need for a forest convention, simply because there is a need for forest conservation. Such presumption dangerously overestimates the power of pieces of paper. More importantly, it should not always be pretended that global action is the only way to cope with environmental probenvironmental lems?many problems are rooted in local conditions. The most important action to conserve biowill have to take place at local levels, by local diversity These imcommunities and grass-roots organizations. in the convention actors are mentioned hardly portant to conduct and, happily, they do not need a convention their activities. A convention is needed only when (1) the root causes of a problem are at the international level, to for a or (2) when it is otherwise country impossible solve a problem on its own. And in both cases one needs a diversity of interests, as there is no need for negotiating if the countries involved all agree with each a convention other. could have been true for the The first motivation on Biological Convention Diversity, as the depletion of biological diversity has important roots in international field. in particular in the economic interrelationships, reason to develop a global convention An important causes of would have been to cope with the international These causes resources. of biological overexploitation include, in particular, low commodity prices for products like timber, fish, and agricultural products, and the debt force crises. These and other structural inequalities their natural countries to overexploit many developing

The Conservation

Articles

But before we go on with these "hot issues," some attention should be devoted to the normal day-to-day matters that were covered by the first fourteen articles of the and for the conservation measures convention?the

266

Politics and the Life Sciences A ugust 1993

This content downloaded by the authorized user from 192.168.52.73 on Mon, 26 Nov 2012 03:41:54 AM All use subject to JSTOR Terms and Conditions

Biodiversity sustainable use of biodiversity itself. The debate on these articles contained relatively little political content. On one hand, the negotiating parties shared a general understanding of what measures should be taken to conserve And on the other hand, they also shared a biodiversity. that no one wanted to be forced general understanding to take these measures. all substantive Consequently, articles begin with the familiar qualifying words, "The Contracting Parties shall, as far as possible and as appropriate...." The notable exception is Article 3, which is a codification of the famous Article 21 of the Stockholm Declaration. The Stockholm was the main Declaration outcome of the "first" UNCED, the United Nations Conference on the Human Environment, held at Stockholm in 1972. Like the Rio Declaration on Environment and Development, the Stockholm Declaration is legally nonbinding, except for this famous Article 21, which has one of the few, if not the only, always been considered environbinding principles of customary international mental law. It reads: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and 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. of biodiversity namely the integration relevant policies. Article 6 reads: concerns in all

Each Contracting Party shall, in accordance with and capabilities... its particular conditions as as far possible and as appropriate, (b) Integrate, and sustainable use of biological the conservation or cross-sectoral in relevant sectoral diversity and policies. plans, programmes Article 10 adds, among other things, the following:

Each Contracting Party shall, as far as possible and as appropriate: and of the conservation (a) Integrate consideration sustainable use of biological resources into national decision-making; (b) Adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity; customary use of bio(c) Protect and encourage in accordance with traditional logical resources cultural practices that are compatible with conseruse requirements.... vation or sustainable And Article 11 reads:

Each Contracting Party shall, as far as possible and as appropriate, and socially adopt economically sound measures that act as incentives for the conof servation and sustainable use of components biological These diversity.

law, customary law According to classical international has the same status as a convention. However, the debate at the negotiations showed that this theory is outdated, as many countries opposed including this article, and when it was finally agreed upon (under the rather strange title of "principle," as no one dared to add anything to this fragile compromise), this a "breakthey considered law." through in international all the other articles do not have much Meanwhile, more legal status than recommendations. From a legal there will be no way in which the parties to perspective, the convention can be forced to fulfill any of these conservation commitments if they are not willing to do so there is ever to force a (presuming any opportunity to fulfill a commitment when it country legally binding refuses to do so). The negotiators even refused to include a global list of species and areas of special interest in the as they were afraid that such a list could be convention, used as a strong political tool to hold them to their own commitments. So what were these commitments? It was already that two of the most important mentioned causes of the debt crisis and the biodiversity depletion, inequitable terms of trade, were left undisputed. However, a third crucial measure has been taken up by the convention,

articles are amongst the most important in the as they touch upon the root causes of bioreof biological diversity depletion?overexploitation sources, degradation of biodiversity due to other sectoral policies (such as infrastructural projects and the lack of convention, incentives due to inequitable to conserve biodiversity of the benefits of biological distribution resources in general), and land rights in particular. the "conservation articles" of the conFurthermore, vention deal with the need for cooperation (Article 5),

The

root

causes

of

biodiversity of degradation of as lack

depletion?overexploitation biological biodiversity infrastructural of and incentives land rights to resources, due to

policies and

such the

projects conserve

biodiversity,

Politics and the Life Sciences August 1993

267

This content downloaded by the authorized user from 192.168.52.73 on Mon, 26 Nov 2012 03:41:54 AM All use subject to JSTOR Terms and Conditions

Biodiversity identification and monitoring (Article 7), in-situ conservation (Article 8), ex-situ conservation (Article 9), research and training (Article 10), public education and awareness (Article 13) and impact assessment and minimizing adverse impacts (Article 14). All the elements within these articles are in themselves extremely valuable. The main political disputes concerning these articles arose mostly (although not exclusively) out of the concern of the developing countries that they would take on too many commitments. Countries such as the United and the United States did not even bother to Kingdom use the argument that a certain article should be "softened" because the hard version would mean that they would have to change their national legislation. But is it not the basic purpose of all international to negotiations cause some change in national legislation? the first fourteen articles of the conConsequently, vention include a number of very interesting recommendations and guidelines for biodiversity conservation, but few real commitments. the "real debates" were Thus, taking place in the other working group. So far as genetic information for agricultural research is concerned, a mechanism had already been set up by the Food and Agricultural Organization (FAO) of the UN.7 The purpose of this mechanism was to ensure that at least some of the benefits of commercial exploitation of traditional varieties of plant genetic resources are shared with the original owners of these resources, in most cases small farmers in remote rural areas in developing countries. There were a number of complications, though, as farmers in remote areas are, regretfully, not tend to share their varalways very business-like?they ieties with other farmers without first going to the nearest patent bureau (often more than 300 miles away) to safeguard their intellectual property rights on the varit is often to find out iety.8 Consequently, impossible which variety was originally developed by what farmer. And mainly for that reason, it was decided that farmers' Comrights should be "vested in the International of for and future as trustee generations munity, present full benefits to the of for farmers, ensuring purpose contheir the continuation of and farmers, supporting tributions...." The benefits of traditional varieties will not flow directly to the farmers, but they will be contributed to the International Fund for Plant Genetic Resources. This fund is to be used to finance a large number of of plant and collection projects for the conservation incomAs farmers' are resources. such, rights genetic intellectual other with property rights, as noparable what a biotechnological will ever body question with the of its patents. On the does royalties company other hand, one could see it as a useful model for a new kind of intellectual property right that obliges the owner of the intellectual property right to use the royalties for As such, the system further research and development. of farmers' rights is an extremely valuable one, especially the vagueness of reward proposals for bioconsidering knowledge in general. The principle is diversity-related a daring one. The only problem with the system is that the fund itself is filled on a voluntary basis, with the result that it is, of course, more or less empty. for agriEspecially in the field of genetic information culture, scientists have always favored the principle of on BiologiThe Convention free access to information. cal Diversity itself does not necessarily hamper this system, as the free accessibility of genes forms one of its key Article 15 (a) reads in this respect: "Each principles. to create conditions Contracting party shall endeavour to facilitate access to genetic resources for environmenParties and not to tally sound uses by other Contracting impose restrictions that run counter to the objectives of this Convention." was not the only political However, the convention in the field of genetic resources in 1992. A development was the fact probably even more important development that a number of U.S.-based biotechnological companies

Sharing

the Benefits

of Genetic

Information

The main political discussions the negotiathroughout tions referred to the genetic information that is contained within biodiversity. is not Genetic information the same as biodiversity, but the amount of genetic information increases to increases in genetic parallel This information can be used for biodiversity. genetic the benefits of which include research, technological commercial for the (amongst others) profits companies developing products on the basis of that research. These profits do not naturally flow back to the countries and communities that provided the original information. The initiators of the convention were aware of this for economic value of genetic information potential medical and agricultural research. Only a very small part of the world's genetic resources has been investigated for or agricultural value. Those possible pharmaceutical resources that have been utilized have genetic actually for the millions of dollars of companies produced profit that made use of this genetic information. to realize that most it is not unimportant Meanwhile, is situated in information countries, genetic developing situated in are while most biotechnological companies if a small of countries.6 So, only percentage developed these profits?say five percent?would flow back to an the pool of institution that has the task of conserving funds for bioan enormous flow of resources, genetic And since conservation would be established. diversity the lack of funds has rules the and since world, money of the main been considered to be one problems always such a system was conin biodiversity conservation, sidered to be one of the main tools of the convention.

268

Politics and the Life Sciences A ugust 1993

This content downloaded by the authorized user from 192.168.52.73 on Mon, 26 Nov 2012 03:41:54 AM All use subject to JSTOR Terms and Conditions

Biodiversity made a successful attempt to impose upon the rest of the world their practices of patenting living organisms. The General means by which this imposition occurred?the on Tariffe Trade a tool that and Agreement (GATT)?is can be used to impose almost anything on the developing countries these days (see Porter, 1992). Developing countries are placed in a very weak position in the and are to almost GATT-negotiations willing accept every concession they have to make. This includes acof intellectual cepting systems for protection property that are not rights designed for economies specifically and industries that are, and likely always will be, undeand better-equipped to older veloped compared economies. Another forum in which the U.S. has a greater say than it should have, according to rules of international law, is the Consultative AgriculGroup on International tural Research (CGIAR), an organization set up by the most important donors of multilateral aid for agriculture. Despite the many doubts among its members over whether patents are the most appropriate and adequate form of intellectual property rights protection for living inventions, the CGIAR concluded at its meeting in May, 1992 that it should be possible to patent the genetic material stored within its genebanks. an Consequently, institution that has always favored the principle of free access is currently allowing its members to use a restrictive form of intellectual property rights to receive a reward for genetic material that has been gathered in accordance with the principle of free access. The discussion concerning this complicated matter has not yet been closed within CGIAR circles. But if some of the major of the world are going to break with the genebanks principle of free access, should the deliverers of genetic material become more business-like? The convention has provided an opening for such a business-like approach (Article 15 [7]): be? A multilateral fund based upon voluntary contributions? Or should the deliverers of genetic information be entitled to some form of intellectual property right? A patent right, perhaps?

Intellectual

Property

Rights

Like many other articles, the provisions on intellectual are extremely vague. property rights in the convention And thus, like many other articles, they are subject to a Article 16 of the convention, variety of interpretations. for example, is a beautiful legal puzzle in which almost every minor provision refers to previous and later provisions. For example, paragraph 2 of Article 16 states: In the case of technology subject to patents and other intellectual property rights, such access and transfer shall be provided on terms which recogwith the adequate and efnize and are consistent fective However, protection paragraph of intellectual property right...

5 of the same article states that

that patents the Contracting Parties, recognizing have an and other intellectual may rights property influence on the implementation of this convenin this regard subject to tion, shall cooperate and international law in order national legislation to ensure that such rights are supportive of and do not run counter to its objectives. If one takes into account the history of Contradictory? these two provisions, this is easily clarified. Paragraph 5, in drafted at the next-to-last meeting of the negotiators text by Norway, in a February, 1992, was a compromise version that was slightly amended by the Netherlands. Discussion was rather short and the U.S. did not make a clear objection. this text However, it was undoubtedly that alarmed the Association of Biotechnological Comindustries in the U.S. panies and other biotechnological that their patent policies might be at risk. In the period before the last negotiating meeting, a powerful lobbying campaign was set up; partly due to this campaign, the U.S. negotiating party appeared at the last negotiating meeting with the most strict and narrow instructions any or no instructions, party had ever had. But instructions texts that were already conthey could not renegotiate cluded. Paragraph 3, though, was not yet concluded, and so the U.S. could save the situation by adding a clause that recognized the need for "adequate and effective of intellectual protection property rights." Did the U.S. win? No?at least not if this clause was meant to ensure that the whole world would accept the U.S. system of patent laws for living inventions. After all, who says patents are the only "adequate and effective

Each Contracting adParty shall take legislative, ministrative or policy measures, as appropriate, and in accordance with Articles 16 and 19 and, where necessary, through the financial mechanism established by Articles 20 and 21 with the aim of in a fair and equitable way the results of sharing research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms.

Recently, an expert panel set up by the United Nations Environment that this paraProgram recommended offers the basis for for a multilateral negotiations graph which could be modeled after the aboveprotocol, partly mentioned FAO system?which is not legally binding. Butwhatwould the details of such mutually agreed terms

Politics and the Life Sciences August 1993

269

This content downloaded by the authorized user from 192.168.52.73 on Mon, 26 Nov 2012 03:41:54 AM All use subject to JSTOR Terms and Conditions

Biodiversity of intellectual Plant protection rights?" property breeder's rights can be interpreted that way. And so could a system of compulsory which could licensing, facilitate the transfer of technology while offering a to the original owners of general financial compensation that technology. does this mean that the convention So, is a victory to the NGOs who have always rejected patent rights? Well, many NGOs themselves do not seem to feel that way. They tend to reject the convention, since it does allow the patenting of living inventions. But even though it would have been wonderful if the convention would have contained a clause: "The Contracting Parties will never accept any patenting on any living invention," one has to remain realistic. Such a clause was never in any of the drafts. However, it is realistic to state that patenting of living inventions is incompatible with the "fair and equitable of the benefits of sharing arising out of the utilization And it resources." is also the uncertain whether genetic convention to be rejects a system in which technologies transferred can be subject to compulsory licensing?a mechanism by which countries can oblige patent holders to make socially useful products available. Of course, the U.S. will immediately claim that this is not the case and that the convention should be interpreted in a way that calls for world-wide its for respect patents. Well, let us then declare solemnly to the U.S. that it has very little to offer as an interpreter of the convention so long as it has not signed the document. Will the convention in interproduce a breakthrough national patent law? This will probably depend upon the forums in which the real decisions are to be made?the GATT. After all, a legal argument arising out of a notnature conservation is unlikely yet-in-force agreement to have much impact on negotiations that depend more on such issues as the North American Free Trade Agreement (NAFTA) and the Common Agricultural Policy of the European Community (CAP). But there is at least one more argument to support developing countries that want to determine for themselves whether "patents are for any progress in their economies" (as a indispensable German diplomat asserted after a lively reception during the last negotiating session for the convention in Nairobi in May, 1992). formed a beautiful example of top-level UN

negotiations. If one conference has ever proven that money rules the world, it is UNCED. the negotiation Throughout the G-77 of a bloc of (Group Seventy-Seven; process and Latin American which Asian, African, countries), has an hard time uniting itself, had normally extremely one key position that all their members agreed upon: "We will not agree with anything if we don't get paid for it." Considering the fact that there is a clear need for additional funds to assist developing countries in making the necessary investments for sustainable development, world this position is understandable?a sustainable cannot be built upon voluntary gifts. Therefore, the only way in which the developing countries could garner some concrete financial commitments from the industrialized countries was to "push and pull" with their willingness all to make any substantive commitments. Meanwhile, parties knew in advance that there was no way the industrialized countries would agree to specific mandatory to the fund. So it took three days of highcontributions at (or rather, after the end level marathon negotiations before the last a week UNCED to draft the meeting of) final text. It reads: country Parties shall provide new financial resources to enable deParties to meet the agreed full country veloping of implementing to them costs incremental of this Conmeasures which fulfil the obligations and vention and to benefit from its provisions a developing which costs are agreed between structure country Party and the institutional referred to in Article 21, in accordance with policy, strategy, programme priorities and eligibility criteCosts esria and an indicative list of incremental of the Parties.... tablished by the Conference The developed and additional (Article 20 [2]) mechanism "clarifies" further:

Article 21 on the financial

Who

Pays

the Bill?

Last but not least, the toughest political disputes at the for the biodiversity convention concerned negotiations the financial resources and the financial mechanism for the convention. were closely linked These negotiations and to to the negotiations for the Climate Convention the negotiations that were taking place parallel to the convention in the preparatory meetings for the "Earth the financial negotiations Summit" itself. By themselves,

shall be such as to take into The contributions account the need for predictability, adequacy and timely flow of funds referred to in Article 20 in accordance with the amount of resources needed to be decided periodically by the Conference of the of burdensharing Parties and the importance Parties included in the list among the contributing referred to in Article 20, paragraph 2.... Anyone who feels bothered by the fact that he or she does not totally understand these texts may comfort him- or themselves herself with the thought that the delegations of the some either. In them understand did not fact, itself were about the hottest debates during UNCED correct interpretation of these articles. First, nobody

270

Politics and the Life Sciences A ugust 1993

This content downloaded by the authorized user from 192.168.52.73 on Mon, 26 Nov 2012 03:41:54 AM All use subject to JSTOR Terms and Conditions

Biodiversity since the for biodiversity cial mechanism conservation, is not a global problemsolely depletion of biodiversity it is also a local problem. In fact, most funds needed in in the coming decades should be seen as an investment of resources and the biological developing genetic can profit from the so that these countries countries, social and economic value of these resources in the near are extremely important, but future. These investments viable for the developing as far as they are economically costs" at stake. are no "incremental there countries, had different themselves The developing countries the administhat the GEF. It was known to objections trator of the GEF, the World Bank, had an overwhelmof the facility. ing influence in the practical operations countries will probably And even though the developing meeting of the acquire an equal say in the Participants in the World have whatsoever not do GEF, they any say to have a stronger Bank. Precisely for this reason?and of about the restructuring position in the negotiations the GEF that went on parallel to the UNCED preparaGEF until the very last tions?they strongly opposed moment. The battle was to be lost, though, as the industrialized countries simply refused to give funds to another mechanism. However, the G-77 did succeed in requiring a large of the Parties in giving mandate for the Conference and they also enthe financial to mechanism, guidance as an interim mechsured that GEF was only mentioned Last anism (in one of the last articles of the convention). but not least, the last sentence of Article 21 (1) states: shall operate within a democratic and "The mechanism If interpreted in a system of governance." transparent legal manner, this article forms a time bomb under the GEF, or at least under its role as the financial mechanism Even the most far-going proposals to of the convention. reform the GEF do not go so far as to make it "democratic." After all, a democratic system of governance would imply that every country, whether donor or not, would have an equal say. This would imply that the developing countries, which constitute a majority, would be able to govern the facility. However, it is known that the donor countries will never give contributions to, or otherwise accept, a financial mechanism that is ruled by the developing countries. Once again, the interpretation of this article will probably be made according to political rather than legal rules.

The not

Global the most

Environment logical for financial

Facility

is

mechanism conservation, biodiversity problem?it

biodiversity since the solely a local depletion a global problem of

is is

not also

costs" are. knows exactly what "agreed full incremental of One could attempt to give a correct legal definition this term, but it should be kept in mind that it is a typical text that will probably be interpolitical compromise preted according to political, and not according to legal, rules. Second, major confusion exists about the exact mandate of the Conference of the Parties according to Article 21. Does the Conference of the Parties have the auto decide the "amount of resources thority solely needed"? Or does it also have the authority to determine "the contributions"? In the latter case, the developing which will countries, probably form the majority within the Conference of the Parties, would be able to overrule the industrialized the specific countries and determine contributions of these donor countries. Such a situation was considered to be unacceptable by the major donors. And even though the second interpretation is less obvious from a legal point of view, the donor countries considered it threatening enough to submit a declaration that this interpretation was unacceptable to them.9 It should be noted that such a "declaration of understanding" does not have any legal status. The final interpretation of this clause will be determined in the course of the and convention, according to political implementing rather than legal rules. The same can be said for the outcome of the other the financial mechanism major financial debate?about that is to administer the funds. From the beginning of the negotiations it was clear that the industrialized countries had a very narrow instruction in this respect. In order to avoid "miscoordination" on multilateral aid for sustainable to increase the condevelopment?and trol of donor countries?they wanted one central mechEnvironment to anism, the Global Facility (GEF), administer the funds for both the Convention on BiolThis faogical Diversity and the Climate Convention. has been set the World the United Bank, cility up by Nations Development and the United Nations Program, Environment Program to provide "new and additional" funds for developing countries to cover the "incremental costs" of taking measures to cope with "global environmental problems." In this respect, the GEF is not the most logical finan-

Conclusion Anyone who thought that the political games on biodiversity would be halted after UNCED has been proven wrong. This is actually for the best, since there are quite a number of important still to be answered. questions There are more or less concrete, though informal, proon biosafety and the sharing posals for a protocol

Politics and the Life Sciences August 1993

271

This content downloaded by the authorized user from 192.168.52.73 on Mon, 26 Nov 2012 03:41:54 AM All use subject to JSTOR Terms and Conditions

Biodiversity of genetic information. In particular the proposal to negotiate a protocol on the safe treatment of genetically modified organisms (GMOs) has caused a political uproar. In this debate it is, once again, the that biosafety has nothing to do with bioU.S.?stating the rest of the world, which is highly diversity?against concerned about the potential risks of the unregulated release of GMOs for biodiversity. Apart from that, the will go on, probably forever. But disputes money or no money, the real action to be undertaken by all parties concerns conservation, not conversation. The economic, social, and spiritual value of biodiversity is too countries, to be great an asset, especially for developing lost. And this requires concrete, strong measures at the levels. local, national, and international financial of benefits Wild Animals (Bonn, 1980), the Convention to Regulate International Trade in Endangered Species of Flora and Fauna (Washington, 1973), and the formally nonbinding but politically important International Undertaking on Plant Genetic Resources. Originally, Article 11 of the convention stated that the Influences of international trade on biodiversity should be considered. See, amongst others, ThirdWorld Network Briefing Papers for UNCED (Penang, Malaysia, June, 1992). International Undertaking on Plant Genetic Resources, 1984. See also Progress Report on the FAO Global System for Conservation and Utilization of Plant Genetic Resources for the Twenty-sixth Session of the Food and Agricultural Organization of the United Nations, Rome, November 9-28,1991. From a joint interview of Jaap Hardon and Simone Bilderbeek, published in M. Ham and G. Dorren (eds.), Rio aan de Rijn, Milieudebatten in Nederlandna UNCED (Utrecht: Platform voor Duurzame Ontwikkeling). Declaration of Australia, Austria, Belgium, Canada, Denmark, Finland, Franca, Germany, Greece, Italy,Japan, Malta, Netherlands, New Zealand, Portugal, Spain, Switzerland, the United Kingdom, and the United States of America, made at the time of adoption of the agreed text of the Convention on Biological Diversity, Nairobi, May 22, 1992.

Notes 1. 2. 3. See the first paragraph of the preamble of the convention. The first ideas probably came forward from a number of people working closely with the Environmental Law Center of the World Conservation Union. For instance, the Convention on European Wildlife and Natural Habitats (Bern, 1979), the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Washington, 1940), and the African Convention on Conservation of Nature and Natural Resources (Algiers, 1968). For instance, the Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar, 1971), the Convention on the Conservation of Migratory Species of

References Mayr, J. (1992). In A.S. Bilderbeek (ed.), Biodiversity and International Law: Effectiveness of International Environmental Law. Amsterdam: IOS Press. Porter, G. (1992). 'The United States and the Biodiversity Convention: The Case for Participation." EESl Papers on Environment and Development, Number 1. Washington, DC. Tewolde Berhan, G.E. (1992). "Conserving and Using Biological Diversity: By Whom? For Whom?" Network '92 19:12-13.

4.

272

Politics and the Life Sciences A ugust 1993

This content downloaded by the authorized user from 192.168.52.73 on Mon, 26 Nov 2012 03:41:54 AM All use subject to JSTOR Terms and Conditions