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December 2014, No. 3 Vol. LI, Conference Diplomacy
In 1972, having witnessed rapid industrialization and its attendant wealth, the international community met for the first time in Stockholm, Sweden, to ponder over the need for a global framework to protect the world’s natural resources. Convened as the United Nations Conference on the Human Environment (UNCHE), the forum issued a declaration proclaiming that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations”.1
Clearly the Stockholm Declaration called upon “Man” not “States”, emphasizing an ecological and ecocentric approach wherein humans as the Earth’s most highly evolved species had a major role to play in protecting the planet. Two decades later in 1992, a second multilateral meeting, the United Nations Conference on Environment and Development (UNCED), held in Rio de Janeiro, Brazil, reiterated a stronger, more anthropocentric approach in the Rio Declaration, stating that “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature”.2 The truth, however, is that by the time UNCED met, human health and wealth had grown manifold in the richer countries, as had hunger, poverty and disease in large parts of the developing world and the lesser developed States. In 1987, to balance developmental needs with environmental protection, the Brundtland Commission coined the term “sustainable development”, which was defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.3
It is against this broad backdrop that an attempt is made to understand how multilateral diplomacy through global conferences4 has demonstrated the world’s commitment to sustainable development, particularly in the conservation and sustainable use of biological diversity. At least three conference events that have contributed to strengthening sustainable development deserve special attention. First, the dynamics and pyrotechnics that sparked the negotiations and adoption of the 1992 Convention on Biological Diversity (CBD);5? second, the negotiations of the first major treaty under CBD auspices, namely the 2000 Cartagena Protocol on Biosafety;6 and third, the negotiations and adoption of the 2010 Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety,7 as well as the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity.8
CBD was adopted with three major objectives: “…conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources”.9 Some of the main issues that States grappled with were: guiding principles and general obligations; jurisdiction; components of biodiversity; relationship with other international treaties; relationship with customary law; in situ and ex situ conservation; impact assessment; liability and redress; biotechnology and use of genetic resources; intellectual property rights; financial provisions; and a host of others which developed countries felt were very contentious issues.10 The mandate of the CBD was so vast that while addressing biodiversity concerns, a more challenging problem arose—that of conflict between certain rules of international trade and mandates of other existing international treaties and processes.
The negotiations of CBD, which were long and protracted, with participants often spending sleepless nights, created a deep sense of mistrust between the developed and the developing world. It was reminiscent of the debates witnessed in the General Assembly of the United Nations during the 1970s on permanent sovereignty over natural resources and the demand for a new international economic order.11 The developing world, endowed with many of the world’s mega-diverse environments, deemed that sovereignty over natural resources should be zealously preserved and that any discussion regarding conservation or sustainable use of biodiversity should be met with adequate guarantees of financial resources and transfer of technologies to help the poorer nations bear the incremental costs incurred in undertaking such conservation measures. Their demands were echoed in Agenda 2112 that called upon developed countries to provide “new and additional financial resources” over and above their official development assistance (ODA) contributions to developing and lesser developed States.
The first instrument to be born out of CBD was the Cartagena Protocol on Biosafety. The overarching and guiding principle of the Protocol was the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development. The objective of the Cartagena Protocol is to “contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements”.13? The negotiations, similar to the CBD debates, were marred by endless, heated discussions which largely saw the international community divided into the “Miami Group” consisting of Argentina, Australia, Canada, Chile, the United States and Uruguay, and the “Like-Minded Group” consisting of the members of G-77 and China. While the Protocol provided some important novel elements of advanced informed agreement procedure, risk management and risk assessment, a contentious issue arose when developed countries refused to include a provision on “liability and redress”. While they remained in solidarity with their domestic biotechnology industries, which did not want a mandatory provision on liability for damage caused by living modified organisms, the developing and least developed States raised the pitch by the slogan “No Liability, No Protocol”.
This contentious issue of liability and redress finally resulted in the negotiation of a separate instrument: the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (2010).14 The negotiations began in 2004 with the establishment of the Open-Ended Ad Hoc Working Group of Legal and Technical Experts and culminated with the adoption of the Supplementary Protocol in 2010. These six years involved very complex and often frustrating negotiations which addressed a host of issues, such as: damage (definition, threshold, nature, scope and valuation of), causation, standard of liability, channelling of liability, financial security mechanisms, State responsibility (which was later dropped in favour of the “operator” being primarily responsible), settling of claims, limitations (time and amount), relationship with non-Parties, standing to bring claims and choice of instrument. Many of these elements were literally fleshed out from their very inception, as there were very few instruments in the field of international law dealing with liability and redress arising from damage caused to biodiversity.15 While, to date, there has been no reported case of damage by living modified organisms, developing countries not having a domestic law on biosafety could only hope for a binding agreement at the international level. While the global community can commend itself for adopting the first treaty that provides a definition of damage to biodiversity, the final architecture of the treaty was a compromised, highly watered-down instrument providing two-fold liability and redress mechanisms, an administrative approach promoted by the European Union and developed countries, with only a single clause in an article on civil liability, addressing the demands of developing countries.
The last treaty in the biodiversity wheel is the Nagoya Protocol on Access and Benefit-Sharing (ABS) of Genetic Resources. Some of the important elements considered during negotiations included access, benefit-sharing and compliance, which were often referred to as the “ABC of the Nagoya Protocol on ABS”.16As providers of bioresources, developing countries with bioreserves wanted a strong, fair and equitable benefit-sharing and effective compliance regime addressing biopiracy of genetic resources, whereas developed countries stressed access standards, as they believed that access must first be guaranteed on fair terms without discrimination. They also wanted continuation of their existing ABS private contracts dealing with commercial utilization of biotechnology.
In conclusion, it is important to understand how conference diplomacy and the evolved biodiversity regimes have contributed towards strengthening sustainable development. Without a doubt, these conferences, especially the ones at Stockholm, Sweden, and Rio de Janeiro, Brazil, have contributed to the awakening of the consciousness of the individual and the international community, to the urgent need to conserve biological resources for the benefit of present and future generations.
Multilateral diplomacy plays a major role in agenda setting, promoting the involvement of all stakeholders and the creation of soft laws.17 The CBD Secretariat and other agencies of the United Nations System have significantly contributed to the larger understanding of the global bio-diversity problem, undertaking studies and research and also preparing educational and background literature to be used by Governments and civil society alike. Another important role played by conference diplomacy is the universal participation of all stakeholders at biodiversity conferences. While international negotiations are State-driven, other actors such as observer States, international organizations, non-governmental organizations, industry and civil society have also found an equal voice in the adoption and shaping of international treaties. In fact, the lessons learned by the biotechnological industry, together with extensive studies on the scientific, social and economic impacts on bioresources and on the lives of indigenous and local communities undertaken by civil society and academics bring tremendous value, knowledge and understanding in shaping the course of negotiations.
The biodiversity conferences have also contributed considerably to institutional building and the progressive development of international environmental law. The post-Rio principles and the biodiversity-related treaties have created a whole host of environmental jurisprudence at the international, regional and national levels based on the precautionary approach, polluter pays, liability and compensation, capacity-building, intergenerational equity and fairness, all of which have contributed to human justice, prosperity and well-being.
Adoption of a treaty in many ways is just half the job, as the real challenge lies in the effective implementation of the treaty regime at the domestic level. The world we live in today is facing unprecedented economic recession. The rising expectations of the masses have placed tremendous strain on the management of biological resources—forests, wetlands, rivers, oceans and the atmosphere. For developing and lesser developed States the overriding priority remains the eradication of poverty and economic and social development. It is imperative that all States must mainstream biodiversity concerns in their developmental policies and national biodiversity strategy and action plans. The ambitious Aichi Biodiversity Targets (2010-2020) adopted at Nagoya in 2010 will remain a distant dream, if developed countries do not meet their commitments to provide additional financial resources, and cleaner and cheaper technologies to help poorer nations. The theme of the recently held Conference of the Parties (Pyeongchang, Republic of Korea, from 29 September to 17 October 2014) was apt—“Biodiversity for Sustainable Development”. It is important that all States live up to the remit of this theme, by pledging their moral and financial commitments to the conservation and sustainable use of biological diversity. ?
Notes
1??? See Report of the United Nations Conference on the Human Environment, Stockholm, Sweden, 5-16 June 1972 (A/CONF.48/14/Rev.1).
2???? See Rio Declaration on Environment and Development, in Report of the United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, 3-14 June 1992, annex i (A/CONF.151/26 (vol. i)), (August 1992).
3??? World?Commission?on?environment?and?Development?(WCED),?Our Common Future (Oxford, Oxford university Press, 1987), p. 43.
4??? Inis Claude Jr., Swords into Plowshares: The Problems and Progress of International Organization (New York, Random House, 1971), p.28. The author traces the rudiments of “conference diplomacy” to the Congress of Vienna, 1815, which for the first time in history set the tone for addressing “common concerns” of States at an institutional level. This Congress, which was followed by other conferences, despite its many failures is said to have “…contributed more to awareness of the problems of international collaboration than to their solution, and more to opening up the possibilities of multilateral diplomacy than to realizing them”.
5??? United Nations, Treaty Series, vol. 1760, No. 30619, p. 79.
6??? United Nations, Treaty Series, vol. 2226, No. 30619, p. 208.
7??? Adopted by Decision BS-V/11 in its annex on 15 October 2010, UNEP/ CBD/BS/COP-MOP/5/17 (29 November 2010).
8??? Available from?.?
9??? Text of the CBD is available from?.
10? Melinda Chandler, “The? Biodiversity Convention: Selected issues of interest to the international Lawyer”, 4 Colorado Journal of International Environmental Law and Policy, vol.4 (1993), pp. 141 – 176.
11 Mohammed Bedjaoui, Towards a New International Economic Order (Paris, United Nations Educational, Scientific and Cultural Organization, 1979); R.P. Anand, Confrontation or Cooperation? International Law and Developing Countries (New Delhi, Banyan Publications, 1984; The Hague, Martinus Nijhoff, 1987; revised second edition, New Hope Publications, 2011).
12? Available from?.
13? United Nations, Treaty Series, vol. 2226, No. 30619, pp. 257-258.
14? For an excellent analysis of the Biosafety Protocol negotiations, see Gurdial Singh Nijar, Sarah Lawson Stopps and Gan Pei Fern, Liability and Redress under the Cartagena Protocol on Biosafety: a Record of the Negotiations for Developing International Rules, vol.1 (Kuala Lumpur, Malaysia, Centre of Excellence for Biodiversity Law, 2008). See also Akiho Shibata ed., International Liability Regime for Biodiversity Damage: The Nagoya-Kuala Lumpur Supplementary Protocol (New York, Routledge, 2014).
15? During negotiations of the Supplementary Protocol, the able Co-Chairs (René Lefeber and Jimena Nieto Carrasco) who successfully guided the participants through the difficult process premised the work of the Supplementary Protocol on three treaties and processes: the work of the International Law Commission on “Draft Articles on Prevention of Transboundary Harm from Hazardous Activities” (2001) and the “Draft Articles on Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities” (2006); Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal, 1999, available from ; and Directive 2004/35/?CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, Official Journal of the European Union, 2004, L 143/56. Available from .
16? See footnote 8.
17 Peter Haas, “UN Conferences and Constructivist Governance of The Environment”, Global Governance, vol. 8 (2002), pp. 73- 91 (81-91).
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