Five Years after the "Earth Summit": Implementation and Effectiveness of the

Convention on Biological Diversity

Author(s): Thomas Yongo
Source: Proceedings of the Annual Meeting (American Society of International Law) ,
APRIL 9-12, 1997, Vol. 91, Implementation, Compliance and Effectiveness (APRIL 9-12,
1997), pp. 321-328
Published by: Cambridge University Press on behalf of the American Society of
International Law

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 Friday, April 11: Afternoon 3 21
Vienna. Hopefully, the resolution of some of these difficulties will be taken up as part of
Secretary-General Annan's new interdepartmental governance model.

Human Rights and the Role of the UN High Commissioner for Refugees
An equally challenging problem relates to the proper role for the Office of the
United Nations High Commissioner for Refugees (UNHCR), and the relationship of that
office to the newer and much less developed Office of the High Commissioner for
Human Rights. In recent years, the UNHCR has, in many respects, also served as a de
facto high commissioner for human rights. This has been particularly true as the
UNHCR's mandate has evolved from its traditional focus on the protection of refugees
outside their countries to include internally displaced persons and other vulnerable
populations.
This would be an appropriate moment to revisit the issue of UNHCR's protection
mandate, and to determine the proper scope of its activities in relation to the evolving and
potential future role of the High Commissioner for Human Rights. While there are no
simple prescriptions, the need for enhanced coordination between these two agencies is
clear.
To summarize, the Vienna World Conference on Human Rights came just before at
least four significant developments which today are shaping the human rights debate at
the United Nations and elsewhere. The Vienna Conference and its final Declaration
clearly helped advance progress in one of these areas, namely the creation of the position
of UN High Commissioner for Human Rights. The other three developments?the rapid
evolution in the effort to create an international criminal court, the expanded use of
human rights monitors and experts in the context of larger UN peace operations, and the
increased involvement of the office of the UNHCR?have occurred outside the Vienna
Conference process. In evaluating a proper future role for the United Nations in
addressing human rights concerns, it will be essential for policy makers to take each of
these developments into account.

Five Years after the "Earth Summit": Implementation and Effectiveness

of the Convention on Biological Diversity

by Thomas Yongo*
The United Nations Conference on Environment and Development (UNCED), the
Rio "Earth Summit," marked the beginning of a fourth period of the "greening" of
international law, which might be characterized as a period of integration1 requiring
environmental concerns to be integrated into and fully taken account of by all relevant
activities.2 The purpose of the conference was to elaborate strategies and measures to halt
and reverse environmental degradation in the context of strengthened national and
international efforts to promote sustainable and environmentally sound development in
all countries. UNCED adopted three nonbinding (soft law) instruments: the Rio
Declaration on Environment and Development (the Rio Declaration),3 the Statement of
Principles for a Global Consensus on the Management, Conservation and Sustainable

* Associate Legal Officer, Secretariat for the Convention on Biological Diversity. The views expressed in
this paper are those of the author in his individual capacity and do not necessarily reflect those of the Secretariat.
11 Philippe Sands, Principles of International Environmental Law 25 (1994).
2 UNCED was formally proposed in December 1989 by the UN General Assembly Resolution 44/228, and
after four preparatory negotiating sessions, some 176 states, several dozen international institutions and several
thousand nongovernmental organizations (NGOs) converged on Rio de Janeiro for two weeks in June 1992.
3 Rio Delaration on Environment and Development, June 13,1992,31 I.L.M. 876 (1992).

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 322 ASIL Proceedings, 1997

Development of All Types of Forest (the Forest Principles),4 and Agenda 21.5 Two
treaties were also opened for signature at UNCED: the 1992 Biodiversity Convention6
and the 1992 Climate Change Convention.7 The early entry into force of the latter
conventions suggests that such political will as existed at UNCED to adopt the
instruments had been carried forward into the next phase.
This next phase is that of implementation and compliance with the instruments.
These instruments will be judged to have been successful only if each state fulfils its
obligations by translating international law into national legislation, regulation and
institutions. This paper is based on the premise that in order for states to effectively
implement and comply with their international obligations, there must be both intent and
capacity, namely: the necessary human and financial resources allocated to the process;
access to information about applicable rules, and, therefore participation by the wider
public; incentives and inducements such as special funds, technical assistance and
training directed at national capacity building. This paper will highlight and evaluate how
effectively the Convention on Biological Diversity (CBD) ensures that state parties do
implement and comply with its provisions.8

Obligations Under the CBD

In many respects, UNCED was a conference about equity: how to allocate future
responsibilities for environmental protection among states that are at different levels of
economic development, have contributed in different degrees to particular problems, and
have different environmental and developmental needs and priorities.9 The objectives of
the CBD reflect the application of this principle, in that they include "fair and equitable"
sharing of the benefits arising out of the use of genetic resources.10
Recent environmental treaties put developing countries in a stronger bargaining
position than previously; the threat of nonparticipation gives them the necessary leverage
to insist on adequate benefit from regimes of common but differentiated responsibility.
The principle of common but differentiated responsibility has developed out of the
application of the broader principle of equity in general international law, together with
the recognition that the special needs of developing countries must be taken into account
in the development, application and interpretation of rules of international environmental
law.11 The principle is endorsed in the preamble to the CBD and is implicitly reflected in
various other provisions to safeguard the special interests and circumstances of
developing countries.12
There are several provisions ostensibly meant to apply more specifically to devel
oping countries than to the developed country parties and vice versa. This is apparently in
response to demands put forward by certain countries that there be equal clarity about

4 Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management,
Conservation and Sustainable Development of All Types of Forests, June 13,1992,31 I.L.M. 882 (1992).
5 Report of the United Nations Conference on Environment and Development, Vol. I, Resolution 1,
Resolutions Adopted by the Conference, U.N. Sales No. E.93.I8 and corrigendum, Annex I (1992).
6 Convention on Biological Diversity, June 5,1992,31 I.L.M. 822 (1992) [hereinafter CBD].
7 United Nations Framework Convention on Climate Change, May 9,1992,31 I.L.M. 851 (1992).
8 The CBD entered into force upon the thirtieth ratification on December 29 1993. As of April 1997, 164
countries and the European Union have ratified the CBD and an additional eighteen countries have signed it. On
December 29, 1994, the UN General Assembly declared December 29, the date of entry into force of the
convention, International Day for Biological Diversity.
9 Sands, supra note 1, at 204.
10 CBD, supra note 6, arts. 1,15(7).
11 Sands, supra note 1, at 217.
12 See, e.g., CBD, supra note 6, arts. 16(2,3), 17(1), 18(2), 19(1,2), & 20(1,2,3).

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 Friday, April 11: Afternoon 323
emphasis on the rights and obligations of both groups of countries.13 Prime among such
provisions with respect to developing countries is the duty "to cooperate ... as far as
possible and as appropriate, with other Contracting Parties ... in the conservation and
sustainable use of biodiversity" (Article 5). The other duties on developing countries
include those embodied in Articles 6-5 which generally define the contracting parties'
obligations in relation to in situ and ex situ conservation and sustainable use of
biodiversity and its components, the duty to undertake environmental impact assessment
and minimize adverse impacts (Article 14), and the duty to give access to genetic
resources (Article 15).
As a sine qua non, developed country parties are, inter alia, under a duty to provide
and/or facilitate access to and transfer of technologies relevant to the conservation and
sustainable use of biodiversity;14 to take all practicable measures to promote and advance
priority access on a fair and equitable basis by contracting parties, especially developing
countries, to the results and benefits arising from biotechnologies based upon genetic
resources provided by those contracting parties;15 and to promote international technical
and scientific cooperation in the field of conservation and sustainable use of biodiver
sity.16 Donors who are parties to the CBD have clearly accepted the legal duty to provide
new and additional financial resources to enable developing countries to meet the
"agreed full incremental costs" of implementing measures that conserve biodiversity
which has global benefits.17 There is also the obligation of "fair and equitable sharing" of
benefits derived out of the utilization of the genetic resources.18
The right of access to information on the environment, whether on the part of the
public at large or on the part of specific categories of persons (such as workers), is a
recent development in international law. An increasing number of international
environmental agreements include positive obligations requiring states to improve public
education and awareness of environmental matters and to give due publicity to matters of
environmental importance.19 There seems to be a realization that public participation is
an integral part of compliance with agreements for sustainable development.
The CBD is very liberal about those who can participate in and at its Conference of
the Parties (COP).20 It recognizes that in many ways environmental nongovernmental
organizations (NGOs) concerned with the conservation and sustainable use of biological
diversity, such as the International Union for the Conservation of Nature, Greenpeace
and World Wildlife Fund, have made important contributions to increased transparency
in international processes. The CBD remains a forum in which NGOs remain deeply
involved and committed. As such, it represents an important forum for the principles and
objectives of chapter 27 of Agenda 21 on strengthening the role of NGOs: partners for
sustainable development.
Recent international environmental legal instruments are characterized by the
increasing inclusion of specific provisions regarding supporting tools to improve its
implementation and effectiveness. Capacity building has proved to be one of the most
important of these tools. Rather than focus on enforcement and dispute settlement,
international legal instruments adopted in the past few years show how countries have

13 See U.N. Doc. UNEP/Bio.Div./WG.2/l/4/Add.l, at 7, for India's argument that the special situation of
developing countries necessitated such a distinction.
14 CBD, supra note 6, art. 16.
15 Id art. 19(2).
16 Id art. 18(1).
17 Id art. 20(2); GEF Instrument para. 2.
18 CBD, supra note 6, arts. 1,15(7).
19/</.artsl2,13.
20 Id art. 23(5).

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 324 ASIL Proceedings, 1997

used clauses that provide for consensus building and enabling mechanisms, particularly
in support of developing countries, as a means of ensuring compliance with international
obligations and commitments.21

Supporting Institutions
A comprehensive enforcement regime is crucial to an international legal instrument
such as the CBD, because it ensures that contracting parties make good on their duties
and obligations. Accordingly, there are a number of provisions in the convention that are
specifically designed to ensure the practical realization of the commitments undertaken
by the parties. A Conference of the Parties is established which is charged, inter alia,
with the task of keeping under review the convention's implementation. To that end, it is
mandated to establish the form and the intervals for transmitting the information to be
submitted by the parties and to consider such information and reports submitted by any
subsidiary body.22
The COP is served by a Secretariat23 and a Subsidiary Body on Scientific, Technical
and Technological Advice. The latter body is meant to "provide the Conference with
timely advice relating to the implementation of the Convention."24 A reporting system is
established under which "each Contracting Party is obligated to present reports on
measures it has taken to implement the Convention and their effectiveness in meeting the
set objectives."25 These particular arrangements can, for instance, not only be seen to
obligate developed-country parties to make available the necessary technical help to
developing country parties, but to ensure that the obligation is carried out under close
scrutiny.
Conventions' secretariats do, however, lack the capacity to enforce the convention's
obligations. In most cases, their power to verify implementation is limited and is often
hampered in the absence of the parties' cooperation, especially in view of the fragmenta
tion within each country of the institutions dealing with environmental issues and the
large number of enterprises whose activities affect the environment. This has resulted in
suggestions that the separate conferences and secretariats be replaced by a unified body
following the World Trade Organization (WTO) model. This view is not commonly
shared, however, given that there is room for improvement under the present fragmented
structures.26
Article 39 instituted the Global Environment Facility (GEF) on an interim basis to
operate the financial mechanism of the CBD. It is a mechanism for international
cooperation for the purpose of providing new and additional grant and concessional
funding to meet the agreed incremental costs of measures to achieve agreed-upon global
environmental benefits in the areas of biodiversity, climate change, international waters
and ozone layer depletion. The three implementing agencies of the GEF are the United
Nations Environment Programme (UNEP), the United Nations Development Programme
(UNDP) and the World Bank.
GEF functions under the authority and guidance of, and is accountable to, the COP.
The GEF Operational Strategy, which fully incorporates the guidance of the COP, was

21 Diana Ponoce-Nova, Capacity-Building in Environmental Law and Sustainable Development, in sustain

able Development and International Law 131 (Winfried Lang ed., 1995).
22 CBD, supra note 6, art. 23.
23 Id ait. 24.
24 Mart. 25(1).
25 Id. ait. 26.
26 Paper presented by Ibrahim F. Shihata before the Expert Meeting on Implementation and Compliance with
International Environmental Agreements, Washington, D.C, May 20-21,1996.

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 Friday, April 11: Afternoon 325
developed to guide the GEF in the preparation of country-driven initiatives in its four
focal areas. The GEF's objectives in biological diversity derive from the objectives of the
CBD. In accordance with the guidance from the COP of the CBD, the GEF Operational
Strategy provides for three categories of activities: operational programs encompassing
long-term measures; enabling activities; and short-term response measures. By providing
an economic incentive for developing countries to comply with international environ
mental treaties, the GEF constitutes part of a global approach based on the principles of
cooperation in a spirit of global partnership and common but differentiated responsibili
ties.

The Conference of Parties' Transition Toward National Implementation

The first meeting of the COP27 set in place the mechanisms provided for by the
Convention. The second meeting of the contracting parties28 marked a turning point in
the evolution of the CBD. It ushered in a new phase of the CBD through the adoption of
decisions aimed at facilitating implementation. This transition is illustrated by the
practical nature of the decisions made by the second meeting of the contracting parties
and their emphasis on policy guidance.29 The adoption by the COP of the main proposals
of the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA)30
demonstrated the relevance and effectiveness of this CBD advisory body.
The second meeting of the COP stressed the importance of cooperation between the
CBD and other biodiversity-related conventions and international institutions. Since then,
the Secretariat for the Convention on Biological Diversity has signed memorandums of
cooperation with the Ramsar Convention on Wetlands and the Convention on
International Trade in Endangered Species (CITES). Similar agreements are being
negotiated with the Convention on Migratory Species (CMS) and the World Heritage
Convention.
The second meeting of SBSTTA31 considered a number of issues, including agri
cultural biological diversity; identification, monitoring and assessment of biodiversity;
technology development and transfer; indigenous knowledge; capacity building in
relation to biosafety; terrestrial biodiversity; marine and coastal biodiversity; economic
valuation of genetic resources; and capacity building in taxonomy.32
By requiring countries to submit national reports, Article 26 of the CBD provides a
mechanism to monitor the implementation of the Convention. Each contracting party is
obliged to report regularly on implementation measures. The report must also consider
the measures' effectiveness, which means a party may have to draw on information
derived from Article 7 (Identification and Monitoring) to fulfill its reporting obligations.
In 1995 the parties finally agreed to loose guidelines for the reports' preparation.33 At its
second meeting, the COP decided that the first national reports by parties would focus
insofar as possible on the measures taken to implement Article 6, "General Measures for
Conservation and Sustainable Use," as well as the information available in national
country studies on biological diversity. The COP also decided that the first national
reports would be due at the fourth meeting of the COP in 1997,34 and that at this meeting,

27 Held in Nassau, the Bahamas, November 28-December 9,1994.

28 Held in Jakarta, Indonesia, November 6-19,1995.
29 Report of the Second Meeting of the Conference of the Parties, U.N. Doc. UNEP/CBD/COP/2/19.
30 The SBSTTA held its first meeting in Paris in September 1995.
31 Held in Montreal, September 2-6,1996.
32 SBSTTA2 Report, U.N. Doc. UNEP/CBD/COP/3/3.
33 Decision II/7 of the COP and Recommendation 1/5 of the SBSTTA, U.N. Doc. UNEP/CBD/COP/2/19.
34 At the third COP meeting, it was decided that the fourth meeting would be held in May 1998; conse
quently, the national reports are to be submitted by the end of 1997.

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 326 ASIL Proceedings, 1997

the COP would determine the intervals and form of subsequent national reports, based on
the experience of parties in preparing their first national reports. There are, however,
problems with relying on reporting as the key monitoring tool. Officials required to file
reports under the burgeoning number of international agreements may find that their time
is mostly occupied by preparing reports rather than by taking the actions called for under
the convention or using the time for other high-priority environmental actions. Indeed, in
countries with a scarcity of skilled labor, a government might need to devote most of its
time to meeting reporting requirements.
Article 11 provides that "Parties shall, as far as possible and appropriate, adopt
economically and socially sound measures that act as incentives for the conservation and
sustainable use of components of biological diversity," and decision 111/18 of COP3
addresses the issue of incentive measures and calls on the parties to share their
experiences in regard to this issue.35
Paragraph 3 of Article 18 anticipated the establishment of a clearinghouse mecha
nism to promote and facilitate technical and scientific cooperation. Both the second and
the third meetings of the COP reaffirmed the importance of the clearinghouse mechanism
to promote and facilitate technical and scientific cooperation and to support implementa
tion of the CBD at the national level.36 The need for this mechanism's accessibility to all
countries was also recognized. The COP noted that enhanced cooperation with other
information systems and activities would contribute to the development of the
clearinghouse mechanism. In this context, the role of the Secretariat to promote and
facilitate access to this clearinghouse mechanism was also noted. The COP requested that
the GEF explore the modalities of providing support to developing-country parties for
capacity building in relation to the operation of the clearinghouse mechanism.
The issues of sovereignty and responsibility are reflected as states are delegated the
duty not to cause or allow transboundary damage resulting from activities within their
territory. The CBD directs the parties to "establish or maintain means to regulate,
manage, or control the risk associated with the use and release of living modified
organisms resulting from biotechnology."37 At the second meeting of the COP, in 1995,
the parties established the Open-Ended Ad Hoc Working Group on Biosafety to develop
a legally binding protocol on biosafety:

"to develop, in the field of the safe transfer, handling and use of living modified
organisms, a protocol on biosafety, specifically focusing on transboundary
movement, of any living modified organism resulting from modern biotechnol
ogy that may have adverse effect on the conservation and sustainable use of
biological diversity, setting out for consideration, in particular, appropriate pro
cedure for advance informed agreement."38

The open-ended working group will endeavor to complete its work by 1998.39
The third meeting of the COP was held in Buenos Aires, November 4-15, 1996. In
addition to the issues covered by SBSTTA, the third meeting addressed incentive
measures for the conservation and sustainable use of biological diversity; general

35 COP paper on incentives?U.N. Doc. UNEP/CBD/COP/3/24 and COP3 decision ffl/18, U.N. Doc.
UNEP/CBD/COP/3/38.
36 A pilot phase of the mechanism has duly been established pursuant to decision 1/3 and II/3 of the COP.
37 CBD, supra note 6, art. 19.
38 COP2 Decision II/5, U.N. Doc. UNEP/CBD/COP/2/19-Decision 11/5.
39 The first meeting of the biosafety working group was held July 22-26, 1996, in Arhus, Denmark. The
second and third meetings were scheduled to be held in Montreal May 12-16, 1997. For report of meeting, see
U.N. Doc. UNEP/CBD/BSWG/2/14.

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 Friday, April 11: Afternoon 327
measures for the conservation and sustainable use of biodiversity; cooperation with other
biodiversity-related conventions; assessment of biological diversity; relationships
between forests and biodiversity; and additional financial resources for the implementa
tion of the CBD.
Ordinarily, a domestic law is required to implement an international treaty or con
vention at the national level. But as the CBD is a framework convention, many of its
provisions, technically speaking, do not require legislation for their implementation. For
example, contracting parties that have developed and adopted national conservation
strategies, programs and plans, and that have incorporated the objectives of the CBD,
would be considered as having met the obligations of Article 6. Similarly, parties may
want to mitigate environmental damage, such as deforestation, by providing fiscal
incentives to this end. National implementation of the CBD objectives during the first
stage after the adoption of the convention has essentially focused on the establishments
of biodiversity management capacities such as national biodiversity strategies and plans,
biodiversity committees or task forces, and biodiversity focal points. Implementation of
the requirements of in situ conservation includes the establishment of protected areas, the
protection of threatened species, and the restoration and rehabilitation of degraded
habitats and ecosystems. However, since the provisions of the convention focus largely
on results, state action toward implementation, including legislation, is important.
Countries need not necessarily apply a model statute to this respect, as the region is so
diverse, but many benefits are to be gained from regional harmonization and cooperation
regarding transboundary aspects. A national law to implement the CBD might include
objectives, territorial jurisdiction, subject-matter jurisdiction, integration of biodiversity
considerations into sectoral policies, planning and land use, research and training,
incentives, financial support, and institutions.

The Way Forward

If we look into the future, we can anticipate increased emphasis on implementation
of, and compliance with, international environmental instruments. Several new directions
are worth noting: the impact of the information revolution and the transparency of
information, public participation in developing and implementing international
environmental instruments, the emergence of economic incentives and market
mechanisms as tools of implementation, and the treatment of third parties within the
agreement. Availability of adequate financial resources will be crucial to practical
implementation of the CBD's objectives.
NGOs and private industry will need to be provided with a direct and legitimate
channel for providing reports to secretariats and having those reports considered in
evaluating implementation and compliance. As Professor Brown Weiss has noted,
"NGOs are likely to continue to expand their influence in the negotiation, implementa
tion, and compliance process of international environmental legal agreements. The
information revolution should greatly facilitate this increased role of NGOs in
international environmental decision-making."40
The articles of the convention dealing with technology transfer and financial re
sources are meant to enhance the capacity of developing states; failure to bring about the
anticipated benefits may result in far-reaching limitations on the implementation
obligations of developing states. Developing states have additional leverage under this
convention in that they provide most of the genetic resources, and will be in a position to
bargain for benefits as a condition for allowing access to their resources. Developed-state

40 Edith Brown Weiss, International Environmental Law. Contemporary Issues and the Emergence of a New
World Order, 81 GEO. L.J. 709 (1993).

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 328 ASIL Proceedings, 1997

parties are also specifically required by Article 16(4) to ensure that the private sector
facilitates access to, joint development of and transfer of technology. More support is
needed to ensure that developing countries are adequately represented in the negotiation
of international instruments, and that their representatives are trained and fully informed.
If these conditions are met, the capacity of developing-country parties to work as partners
in international environmental conservation will be greatly enhanced.
Active treaty management requires resources and people. Secretariats in the envi
ronmental area are skeletal. Parties cannot keep up with the demands of management.
Involvement of the parties is crucial to establishing the domestic priorities of each, but a
robust secretariat is also needed to carry out a strategy of active management, especially
in providing the assistance needed to build capacity. The bureaucratic relationships
among members and the treaty organization reinforce the propensity to comply. If there
is a robust organization, it can focus and apply the pressures of exposure and shaming on
a member to comply where lack of capacity is not the reason for noncompliance. The
result may not be a treaty with teeth, but it will be a treaty with muscle. One of the most
important means of securing compliance is to ensure that secretariat personnel have
secure, long-term contracts. In light of the financial crisis in the UN System, some
secretariats have moved largely to short-term contracts of one to three months, and funds
provided by the parties to the agreement, even if in separate bank accounts, have become
subject to general restrictions on use. Secretariats need to attract and retain quality
personnel and to be able to implement long-range planning.41
The international legal instruments adopted in Rio have confirmed and strengthened
the bargains between countries at different levels of development. These bargains have
turned the issue of capacity building into more of an obligation. Before, the bargains
were implicit and were made on the basis of good faith; now, the treaties contain an
obligation for those countries with the ability to do so to provide support to less
developed countries.

Getting Down to Business:

Implementing the Goals of the UN Global Conferences of the 1990s

by Masumi Ono*

As each panelist has discussed the issues surrounding one particular United Nations
Conference, I would like to build on some of the points they have made to discuss how
these conferences are being implemented within the UN System and some of the
problems that have arisen in the process. My remarks are given in my personal capacity,
not on behalf of the United Nations. I would like to elaborate on three points: (1) how the
conferences have broadened the traditional definition of development and created a need
for coordination within the UN System; (2) what institutional mechanisms exist to
achieve that coordination; and (3) the extent of the United Nations' success in
implementing the goals of the conferences.
The series of conferences in the 1990s should be seen as links in the same chain, as
each of them has contributed to creating a concept of sustainable development. Although
each conference had a particular theme, each one examined the concept of sustainable
development in a comprehensive, holistic manner. Recent major international confer

41 Edith Brown Weiss, Strategies for Compliance (May 20-21,1996) (unpublished workshop paper presented
at UNEP/Georgetown University Law Center).
UN Department for Policy Coordination and Sustainable Development.

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