The Convention on Biological Diversity (CBD), formulated in 1992, has been one of the hard negotiated international treaties. Although negotiated in the global political ambience of the new unipolar world order and the unopposed Western victory in Iraq, the Southern negotiators had displayed unusual unity and negotiation skills. The result was a fairly balanced treaty that accommodates the legitimate interests of both the South and North.
But perhaps that is all that could be said of the Convention. More than a decade after its entry into force, its achievements remain volumes of repetitive documents, endless surrealistically named committees and fissiparous meetings. While the CBD process indulged in its own virtual world, in the real world biopiracy remained unabated. The proceedings of the Seventh Meeting of the Conference of Parties (CoP) do not leave room for much hope either. The Kuala Lumpur meeting, held from February 9 - 20, 2004, marked another retrogressive step in terms of enforcement.
CBD ABCs
The Convention unequivocally recognizes national sovereign rights over biodiversity, requires prior, informed consent for access to biodiversity and that such access should be based on naturally agreed terms. CBD also stipulates that any commercial benefit derived out of the use of biodiversity should be equitably shared with the providing country. CBD has thus made biopiracy an international offence and set the fundamental legal framework for providing access to biodiversity and benefit sharing.
However, these hard negotiated provisions of the Convention were ingeniously undermined by the North, skillfully sidestepped by the Convention Secretariat and blissfully ignored by the Southern Parties. As a result, species after species have been misappropriated from the biorich South, worked on and patented, all in obvious violation of the treaty.
International Access
A centerpiece of the Kuala Lumpur meeting was the decision to develop an 'international regime' for Access to Biodiversity and Benefit Sharing (ABS). Such a decision has been the culmination of a lengthy process initiated at the Third Conference of Parties. While the basis for access and benefit sharing has been clearly laid out in the Convention and it unconditionally requires the Parties to take "legislative, administration or policy measures" to facilitate benefit sharing with the providing countries (Article 15.7), this new exercise would only help the developed country Parties to circumvent the legally binding requirements for benefit sharing as provided in the Convention, apart from providing an excuse for continued inaction on this count.
Developing countries have, in fact, been tricked into asking for an international regime, while they should actually have been asking the CoP to review the implementation (or lack of it) of the relevant articles on access and benefit sharing, especially Article 15.7. By agreeing to negotiate the international regime, developed countries hope to reopen issues that have already been settled in the Convention. For instance, they already object to calling the proposed regime a 'legally binding' one, while indeed the Convention has provided the legally binding provisions for ABS.
Relenting a Once Strong Position
There has been an abysmal weakening of the negotiation position of the developing countries. This is disappointing especially when one considers the unusual strength maintained by developing countries in the CBD formulation negotiations. In retrospect, it was this strength that enabled the developing countries to totally reject the IUCN- (The World Conservation Union) drafted articles and the underlying notions, such as States are simply 'guardians or custodians' of biodiversity and not owners; payment of a levy to a proposed international fund for biodiversity use within their territory; placing the principal emphasis on access to biodiversity; and so on.
In its clamoring for a convention on biodiversity in the late 80s, the key objective of the U.S. was to legalize free and open access to biodiversity of the Southern countries before they institute protective measures. It was indeed a remarkable achievement of the Southern negotiators that they were able to discard the IUCN draft articles and the notions contained therein that formed the broad Western negotiation position. It was united and resourceful negotiations by the South that gave birth to a balanced CBD, eliminating the prospect of a treaty for subjugating the most important resource of the South (it is this North-South balance of CBD that prompted the U.S., the original initiator of the convention proposal, to stay away from the treaty).
But such unity and efficiency have withered once the treaty came into force. Developing countries have since remained largely reactive and at best defensive. At Kuala Lumpur, the G of 77 (common negotiating forum of developing countries within the UN system) was anything but effective, due in part to the late decision on who would chair the meeting. The half-minded, Like Minded Megadiverse Countries did not have any significant technical support. The regional group meetings of Asia and Africa were largely composed of monologues.
New Programs Questionable
The Conference has adopted new programs of work on protected areas, mountain biodiversity and technology transfer. The protected areas program is a means to achieve the 2010 target of significantly reducing the loss of biodiversity, set by the World Summit on Sustainable Development (WSSD). Although the role of indigenous and local communities is factored in, there was no departure from the exclusionary doctrine of protected areas, which has caused the dislocation of people from conservation areas and locked them out of the conservation project.
While the program on technology transfer seeks to promote ways to enable the transfer of appropriate technologies to developing countries, the debate on the subject did not address the issue of how the Parties have complied with the obligation under the Convention to 'take legislative, administrative or policy measures' to transfer technology including those protected by the intellectual property regimes, on mutually agreed terms (Article 16.3), and to take exactly similar measures to facilitate such technology transfers from the private sector (Article 16.4). This failure is another instance of compromising the Convention's legally binding provisions. The Conference has adopted guidelines for the sustainable use of biodiversity, biodiversity-related tourism and environmental impact assessment of development projects on the territories of indigenous peoples. Traditional knowledge was another key issue addressed by the meeting.
Changing Sides?
The West has never been comfortable with CBD's recognition of national sovereign rights over biodiversity. In a panel discussion organized by the United Nations University and CBD Secretariat on the sidelines of the CoP, I was surprised to hear Vincent Sanchez, the former Chilean Ambassador who had fairly effectively chaired the negotiation to formulate the Convention, expressing discomfort with the sovereignty provision. Supporting the natural argument of an American delegate on the subject, he observed that the sovereignty issue had 'suddenly cropped up' in the formative negotiations on the Convention.
One wonders as to when it was that the resources, and for that matter anything else, within the territory of a nation were regarded as a global resource, that is, in a post-colonial world. The remark was suitably answered by Ambassador Ting Wen Lian, the 'dragon lady' of Malaysia who had been the vanguard of the South in the Convention formulation negotiations.
What Constitutes a Global Resource?
At least for some, the global resource argument has been the result of confusing biodiversity with the subject of a prolonged debate within the Food and Agriculture Organization (FAO) parlance. The subject there was the genetic resources appropriated from the South and held in the seed/gene banks of the North. Within the FAO forums, the South took the lenient position of regarding these translocated genetic resources as a global resource, while the North opposed access for the South to these resources. These resources remain untouchable to CBD too by having denied retrospective effects of the CBD (Article 15.3). However, the Nairobi Final Act that adopted the final text of CBD had regarded the issue of access to pre-CBD ex situ collections as an outstanding matter and hence called on the FAO system to address this issue (Resolution 3). But the subject of CBD's sovereignty provision is the opposite and simple: a country's own biodiversity held within its territory.
Unbalanced Representation
The indigenous communities have come a long way in playing a significant role in the CBD process. They have turned out in fairly good numbers and were reasonably well organized. However, I was disappointed to see a small segment of indigenous groups being influenced by fund-wielding Western agencies in shaping their positions. India has the largest population of indigenous people (whom the minority ruling castes refuse to recognize as indigenous) yet there was none to represent them at the CoP.
Several affluent Western NGOs are listed as collaborators in implementing the protected areas program. This is obviously an arbitrary listing and may set an unpleasant precedent. In actual fact these NGOs, though they operate on the international scale on the strength of their funds, do not have an open membership, democratic election of leadership or adequate representation of Southern citizens in their governance structures. I just hope that such arbitrary recognition of NGOs would not set a precedent.
What Shall We Do With the US?
Emil Salim, the Indonesian statesman who chaired the UN preparatory meeting for the Johannesburg Summit, asked his colleagues on the podium in desperation at the adjournment of an inconclusive session during the critical final meeting of the committee, "What shall we do with the US?" (The saintly Salim had forgotten to switch his microphone off and the next day NGO representatives appeared at the meeting venue wearing T-shirts printed with the quote).
How could CBD achieve the 2010 target of substantially reducing the loss of biodiversity without bringing the country with the largest number of endangered reptilian, amphibian and fish species in the world into its ambit? Nobody has raised the issue of bringing the US to accede to the Convention, not even the Ministerial Declaration, which has called on all countries to accede to the Biosafety Protocol. It may not be entirely that delegates were happy not having the intimidating voice of the US in the negotiation halls. US can be brought into the fold of the treaty only if a forthcoming CoP decides not to provide access to biodiversity for non-Parties.
CBD is a fair international legal mechanism available for the sustainable management of biodiversity, but its implementation would depend on the strength that the South could gather in the future negotiations, without forgetting their own responsibilities.
