Joining the convention on biological diversity: A legal and scientific overview of why the united states must wake up
| Author | William J. Snape, III |
| Position | Senior Counsel at the Center for Biological Diversity and a Practitioner in Residence at American University Washington College of Law |
| Pages | 6-16 |
6SPRING 2010
INTRODUCTION AND SUMMARY
Life on Earth as we know it is under siege. Significant and
probably irreversible changes to the natural world are
now occurring. It is an undisputed fact that we are losing
wild species in nature to extinction faster than in any geologic
period since the dinosaur die-off roughly sixty five million years
ago. It is also undisputed that ecosystem services from land,
water, and air are degraded throughout the world and threaten-
ing food supplies, economic development, scientific advance-
ments, and global security. The
rapid advent of global warming
and associated climate change
makes the job of saving native
plants, animals, and habitats even
more di fficult. Human beings
need biological diversity to sur-
vive and prosper, but our natural
support system is fraying.
Enter the Convention on
Biological Diversity, sometimes
called the “CBD” for short. The
United States has signed but
not yet ratified this international
treaty, which has emerged as the
best overarching tool to protect
species, habitats, and ecological processes important to human
well-being. It has a seventeen-year track record building numerous
success stories with its over 190 members; only Andorra, the Holy
See (Vatican), and the United States remain as non-members.
Now more than ever, the engagement and leadership of the
United States is necessary to protect biological diversity and the
natural services enjoyed by Americans and others throughout
the world. No country possesses an inventory, description, and
understanding of its wildlife, habitat networks, and ecological
processes greater than the United States. In addition, the U.S.
possesses transparent laws, dispenses significant foreign aid, and
embodies a tradition of public engagement that leads to greater
biodiversity-related protection and enforcement than most coun-
tries. The U.S. has also been a good international partner in other
environmental agreements and treaties such as the Convention
on International Trade in Endangered Species (“CITES”), the
Ramsar Convention on Wetlands, and the Montreal Protocol
on Substances that Deplete the Ozone Layer. The interests of
the United States stand to benefit greatly from such multilateral
cooperation and continued ability to access biological diversity
from other countries across the globe.
Significantly, no new federal or state laws are necessary
for the United States to ratify and join the CBD, and absolutely
no loss of legal or natural resource sovereignty is even possible
under the express terms of the Convention. The United States
will, in fact, benefit under the treaty by better organizing its own
biodiversity-related programs, and by similarly helping non-
U.S. geographic areas, many in strategically important locations.
The United States will also benefit by possessing a formal seat
at the table for important upcoming negotiations and discussions
under the Convention, particularly with regard to the proposed
protocol on Access and Ben-
efit-sharing (“ABS”), and by
being connected to other Parties
through various biodiversity-
related projects such as scien-
tific research, climate offsets,
ocean protection, alien invasive
species work, and enforcement
coordination. Many worldwide
biodiversity cooperative pro-
grams flow from the Conven-
tion, including partnerships
with other U.N. agreements and
the World Trade Organization.
Consistent with the plain
language of the treaty’s text, which clearly supports U.S. Gov-
ernment discretion in all actions CBD-related, U.S. interests
have also been protected by the so-called “Seven Understand-
ings” and other official interpretations and clarifications devel-
oped with overwhelming bipartisan support in response to U.S.
industry concerns in the early to mid 1990s. Indeed, the Conven-
tion’s implementation has been influenced by the U.S. Govern-
ment interpretations. These interpretations represent a firm way
of moving forward in international biodiversity matters.
Younger and future generations of American and global cit-
izens will thank the President and Senate that finally enables the
United States to take its rightful place as a member of the Con-
vention on Biological Diversity. There is no longer any rational
basis for the U.S. to stand apart from the world with regard to the
treaty that is known as the convention for life on Earth. The Sen-
ate should ratify this convention at the earliest possible moment,
along with other high priorities including the Law of the Sea
JOINING THE CONVENTION ON BIOLOGICAL DIVERSITY:
A LEGAL AND SCIENTIFIC OVERVIEW OF WHY THE UNITED STATES MUST WAKE UP
by William J. Snape, III*
* William J. Snape, III is Senior Counsel at the Center for Biological Diversity and
a Practitioner in Residence at American University Washington College of Law.
Now more than ever,
the engagement and
leadership of the
United States is
necessary to protect
biological diversity.
7SUSTAINABLE DEVELOPMENT LAW & POLICY
Convention (“UNCLOS”) and the International Treaty on Plant
Genetic Resources (“ITPGR”).
UNDERSTANDING THE CONVENTION ON
BIOLOGICAL DIVERSITY
WHAT IS AT STAKE FOR HUMANITY AND THE
NATURAL WORLD
The Convention on Biological Diversity1 defines biologi-
cal diversity as “the variability among living organisms from
all sources including, inter alia, terrestrial, marine and other
aquatic ecosystems and the ecological complexes of which they
are part: this includes diversity within species, between species
and ecosystems.”2 As revealed by its linguistic roots, the term
“biological diversity” (or “biodiversity”) describes the variety of
life on our planet. It includes literally all of the millions of ani-
mals, plants, fungi, lichens, and
microorganisms. It includes the
evolutionary variation of life,
built up over the several billion
years of the planet’s existence—
at the genetic, species, and eco-
system levels. And, it includes
the stunning diversity of species
and natural processes with and
between many different ecologi-
cal regions. In sum, biodiversity
is all life on earth.3
The planet is currently los-
ing biological diversity at a rate
not seen since the mass species
die off that claimed the dinosaurs in the Cretaceous geologic
period sixty-five million years ago.4 The loss of biological diver-
sity, including the approximately 1.9 million existing known and
identified species as part of the roughly 15 million estimated
number of all total existing species,5 can be lumped into three
main, overarching causes: habitat loss and degradation; inten-
tional take and related forms of trade or commerce; and vari-
ous forms of pollution (e.g., dirty water, toxics, invasive species,
greenhouse pollutants).
Aside from the many inherent, personal, and spiritual rea-
sons to save nature, economists have estimated multiple tril-
lions of dollars worth of benefits from a healthy balance of
biodiversity: clean air and water, productive soils and wetlands,
bio-commerce, recreation, eco-tourism, health costs and insur-
ance savings.6 The biodiversity crisis, already acute before the
manifestations of global warming,7 is now accelerating because
massive amounts of greenhouse pollutants in the planet’s
atmosphere could “drive the climate system” to “tragic con-
sequences” that are completely “out of our control.”8 Some of
our current “needs” of fossil fuel energy, corporate agriculture,
mass-manufacturing, urban development, suburban sprawl, and
traditional transportation are ironically threatening our very sur-
vival. Biodiversity-rich oceans, forests, and other ecosystems
could be a major part of the climate change solution.9
There is scientific consensus about the staggering decline of
natural capital lost over the past century.10 The Millennium Eco-
system Assessment (“MEA”) may be the most comprehensive
assessment of the Earth’s ecosystems to date. The MEA was
prepared by 1,360 experts from 95 countries (including a large
contingent from the United States), and functioned as a broad
partnership of international organizations, academics, scientists,
non-profit groups, and private foundations.11
The central finding of the Millennium Ecosystem Assess-
ment is that “(o)ver the past 50 years, humans have changed
ecosystems more rapidly and extensively than in any compa-
rable period of time in human history, largely to meet rapidly
growing demands for food, fresh water, timber, fiber and fuel
. . . [and the] degradation of ecosystem services could grow
significantly worse during the first half of this century.”12 Spe-
cific examples from the MEA
report are highly illuminating
albeit sobering: more land was
converted to cropland between
1950 and 1980 than between
1700 to 1850; withdrawals from
rivers and lakes have doubled
since 1960 (as has water use in
general) and is expected to grow
significantly; 60% of atmo-
spheric carbon dioxide pollution
since 1750 has taken place since
1960; world human population
doubled from 3 to 6 billion peo-
ple from 1960 to 2000; wood
harvests for pulp and paper have
more than tripled since 1960; at least one-quarter of all commer-
cially exploitable fish stocks are clearly over-harvested.13
The Assessment concludes there must be “significant
changes in policies, institutions and practices that are not cur-
rently under way.”14 Approximately 60% of the ecosystem
services evaluated” in the MEA “are being degraded or used
unsustainably.” The degradation of ecosystem services often
causes significant harm to human well-being and represents a
loss of natural assets or wealth of a country.15 Disease, malnu-
trition, famine, poverty, and unrest will all result under almost
all models without change. Reinvigorated implementation of the
CBD, with the partnership and leadership of the United States,
would be a constructive change of course.16
Even before the current understanding on the threats caused
by global warming, the loss of habitat and species were already
understood as a major threat to mankind.17 Now, with the
impacts of global warming already beginning, the full throttle
of potential calamity becomes clear.18 Consider this conclusion
from th e U.S. Depart ment of Defense, Air Command Staff of
the M axwell Air Force Base in Alabama: “The emergence of
harmful nonlinear, long-term, cumulative, anthropogenically
generated changes to the Earth’s climate and natural environ-
ment pose a ‘serious threat to America’s national security.’”19
. . . economists have
estimated multiple
trillions of dollars
worth of benefits from
a healthy balance
of biodiversity.
8SPRING 2010
This security risk involves more than the disturbing pros-
pect of massive sea level rise and large parts of coastal America
disappearing20 and more than the continued pressure by refugees
to breach our borders.21 Take, for instance, the melting Hima-
layan glaciers and the changes wrought by dwindling water
supplies for areas in China and India (i.e., Ganges, Yellow and
Yangtze Rivers) as well as Afghanistan and Pakistan (i.e., Hindu
Kush mountain region with 140 million rural residents includ-
ing many susceptible to hostility toward the United States).22
That these glaciers may not totally melt by 2035, as originally
hypothesized by some scientists, means we still have time.23 But
without action, including adaptation guided by the CBD, it is
no exaggeration to say that major natural upheavals and suffer-
ing will occur all over: from the Arctic and subarctic regions to
Africa and the Americas.
Today, there is reason to believe that the odds of significant
natural resource degradation leading to deadly human unrest
throughout the world are quite high.24 And it is not just environ-
mental advocates who are calling the alarm. It is the military. It
is the scientific establishment. It is the insurance and investment
industries. Natural resource degradation, global food insecurity,
and climate change are a volatile stew. The CBD is a stabilizing
blueprint toward remedying many of these problems.25
THE CONVENTION ITSELF: PROVIDING FRAMEWORK,
NOT PRESCRIPTION
The Convention on Biological Diversity was adopted on
May 22, 1992 and entered into force on December 29, 1993. The
U.S. signed the treaty on June 4, 1993. The CBD was the result
of a decade’s worth of diplomatic effort, originally led by the
United States, which included several different U.S. administra-
tions from both political parties. The preamble of the Conven-
tion is premised upon “the intrinsic value of biological diversity
and of the ecological, genetic, social, economic, scientific, edu-
cational, cultural, recreational and aesthetic values of biological
diversity and its components . . . (and) also of the importance
of biological diversity for evolution and for maintaining life
sustaining systems in the biosphere.” The CBD further affirms
“that the conservation of biological diversity is a common con-
cern of humankind,” is “(c)oncerned that biological diversity is
being significantly reduced by certain human activities,” and is
“(d)etermined to conserve and sustainably use biological diver-
sity for the benefit of present and future generations.”26
The objectives of the Convention are three-fold: (1) the
conservation of biological diversity (e.g., Articles 6-9, 11, and
14); (2) the sustainable use of its components (e.g., Articles 6,
10, and 14); and (3) the fair and equitable sharing of the benefits
arising from the use of biological and genetic resources (e.g.,
Articles 14, 15, 16, and 19-21).27 Thus, “conservation” of bio-
logical diversity, the “sustainable use” of its components and the
“fair and equitable sharing of the benefits,” together form the
heart or basic agreement of the Convention. The central concept
of “sustainable use,” which also governs much of the U.S. public
land system, is defined under the CBD as “the use of components
of biological diversity in a way and at a rate that does not lead to
the long-term decline of biological diversity, thereby maintain-
ing its potential to meet the needs and aspirations of present and
future generations.”28 The CBD seeks to have parties integrate
conservation and sustainable u se into its decis ion-making, to
avoid and minimize adverse impacts to biological diversity, and
utilize customary and local efforts as appropriate.29
Perhaps the most fundamental point about the CBD is that
its legal power is inherently limited by design. The Convention’s
clear enunciation of national control over domestic biological
resources is the starting point:
States have, in accordance with the Charter of the
United Nations and the principles of international
law, the sovereign right to exploit their own natural
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 areas beyond the limits
of national jurisdiction.30
As a matter of interpretation, the CBD authorizes much but
mandates little. Terms such as “as far as possible and as appro-
priate” are scattered throughout the treaty. However, the conven-
tion’s conservation provisions and programs prompt countries
such as the U.S. to focus on the “big picture” by connecting
policies and funds in a manner that benefits all. Consequently,
the CBD is considered more of a “framework” convention
because it, inter al ia, does not set many precise obligations.31
As one scholar puts it, “a framework convention sets the tone,
establishes certain principles and even enunciates certain com-
mitments … As a rule, it does not contain specific obligations
… nor does it contain a detailed prescription of certain activi-
ties.”32 Contrary to the rhetoric of some extreme ideologues
who seemingly oppose involvement in any multilateral coopera-
tive endeavor, the CBD creates a global structure that is imple-
mented with wide latitude and discretion at the national level,
specifically allows for negot iation (or rejecti on) of annexes or
protocols, does not mandate binding dispute settlement and pro-
vides connection with other accepted international agreements.
This concept of “framework” in conjunction with the precise
language of the treaty is crucial in understanding the full sover-
eignty the United States retains when it becomes a party to the
Convention on Biological Diversity.33
Conservation Under the Convention
Much of the conservation agenda of the Convention is con-
tained in Articles 6, 8, and 14.34 These articles and others cover
the gamut of biodiversity conservation including tasks the CBD
already does well: fostering coordination in addressing harm-
ful invasive species, implementing a global strategy for plant
conservation; providing support for vital scientific discipline
of taxonomy; catalyzing large-scale protected area protection;
and linking with important global warming and climate change
efforts.35 Every U.S. governmental analysis of the Convention’s
conservation provisions has concluded that existing U.S. laws
already meet the commitments of the Convention.
9SUSTAINABLE DEVELOPMENT LAW & POLICY
Article 6 of the CBD, Genera l Measure s for Conserva-
tion and Sustainable Use, requests that “Each Contracting Party
shall, in accordance with its particular conditions and capabili-
ties: a) Develop national strategies, plans or programmes36 for
the conse rvation and sustain able use of biological diversity or
adapt for this purpose existing strategies, plans or programmes
which shall reflect . . . [such] measures . . .; and b) Integrate as far
as possible and as appropriate, the conservation and sustainable
use of biological diversity into relevant sectoral or cross-sectoral
plans, programmes and policies.” Although the U.S. currently
does not possess a “biodiversity plan” per se, its impressive
array of conservation statutes and programs to protect and use
biological resources of all sorts certainly could be considered
to constitute one de facto.37 If anything, the CBD should help
the U.S. coordinate and prioritize its biodiversity agenda even
better.
Inherent in this system of federal protection is the impor-
tant role that state governments play in the protection of biologi-
cal diversity under the U.S. Constitution, as well as a variety of
relevant natural resource statute and programs. States possess
primary responsibility for fish, wildlife, habitat, and other “bio-
diversity” trusteeship duties (e.g., water rights) not otherwise
covered by valid federal authority.38 States also possess explicit
authority under U.S. pollution statutes such as the Clean Air Act
and Clean Water Act.39 Because of this reality, state authorities,
powers, and prioriti es would absolutely no t be alt ered by the
CBD unless the state voluntarily and willingly chos e to do so.
Same as with the national level of biodiversity-related programs,
the states possess a rich tapestry of current, popular, and effec-
tive biodiversity programs.40
Article 8 of the Convention, In-Situ Conservation, is where
the plans in Article 6 actually take root. It is also where the most
comprehensive list of conservation commitments is explained.
While it is clear that the list of measures to be considered under
Article 8 conservation is long, it is equally clear that most mea-
sures are largely hortatory and/or plainly covered by existing
U.S. laws or programs, which are quite well-developed and
enough to center its entire Article 8 program, from “a” to “m.”
First and foremost, the U.S. has established “a system of
protected areas and or areas where special measures need to
be taken” under Article 8(a).41 Integrally related to this natural
system, the United States has developed and now manages “for
the conservation of biological resources” pursuant to Article 8
(b)-(c) through various federal and state statutes relating wild-
life, plants, fish, forests, wetlands, coasts, lakes, rivers, water,
endangered species, rangelands, parks, refuges, and other public
lands. The U.S. “promotes” the protection of domestic and for-
eign ecosystems, natural habitats and the maintenance of viable
populations of species and “recovery plans” under CBD Articles
8(d), 8(f), 8(k), and 8(m).42
The U.S. similarly “promotes” environmentally sound and
sustainable development “in areas adjacent to protected areas”
under CBD Article 8(e) through statutes such as the Endangered
Species Act (e.g., habitat conservation plans under Section 10),
Coastal Zone Management Act state-federal plans, the Clean
Water Act’s wetland pr ogram, and the Bureau of Land Man-
agement’s Areas of Critical Environmental Concern (“ACEC”)
program, among others. The United States’ philosophy on
municipal, industrial, and hazardous waste is also consistent
with CBD Article 8(e).43 The U.S. has established “means” to
regulate or control risk associated with living modified organ-
isms u nder CBD Article 8(g) through several statutes.44 The
U.S. possesses authority to “prevent” the introduction of alien
species under Article 8(h) through statutes such as the Federal
Noxious Weed Act and the Nonindigenous Aquatic Nuisance
Prevention and Control Act.45 The U.S. “endeavors” under CBD
Article 8(i) to provide conditions for present uses and conserva-
tion of biological diversity through all of its public land laws,46
the Endangered Species Act, and countless state/local zoning
ordinances.
The U.S. also already possesses—under its legal system of
endangered species, public land, pollution, and environmental
assessment laws—“processes” designed precisely to oversee
predicted adverse impacts to biological diversity (under CBD
Article 8(l)).47 The U.S. legal system also, based on both its
trustee role for Indian tribes as well as its respect for tribal sov-
ereignty, possesses a rich legal fabric of respect for and mainte-
nance under CBD Article 8(j) of Native American “knowledge,
innovations and practices … relevant for the conservation and
sustainable use of biological diversity.”48 Pertinent to CBD
Articles 8(m) and 22, the U.S. already actively participates in
a number of multilateral initiatives to conserve, protect, use,
and share biological diversity.49 All these conventions, treaties,
agreements, declarations, and funding actions50 have proven
constructive, some significantly so, to U.S. foreign and environ-
mental policy across party lines over the past half-century.
Understanding and minimizing site-specific impacts to bio-
diversity is laid out in Article 14(a)-(b) of the CBD which, inter
alia, states: “Each Contracting Party, as far as possible and as
appropriate, shall … Introduce appropriate procedures requir-
ing environmental impact assessment of its proposed projects
that are likely to have significant adverse ef fects on biological
diversity with a view to avoiding or minimizing such effects
and, where appropriate, allow for public participation in such
procedures … ensure that the environmental consequences …
are duly taken into account.”51 This request, which the United
States already implements through environmental review proce-
dures under the National Environmental Policy Act (“NEPA”),
the grandparent of U.S. environmental law,52 which generally
mandates that “every federal agency action” “significantly”
“affecting” “the quality of the human environment”53 be accom-
panied with an “environmental impact statement” that includes
“adverse environmental effects which cannot be avoided,” a rea-
sonable number of “alternatives,” and “any irreversible and irre-
trievable commitments or resources.” Multilaterally, the United
States regularly analyzes the environmental impacts of its com-
mercial and other actions, even when the biodiversity at issue is
outside the country.54
In fact, it could be argued that U.S. general adherence to
NEPA and related environmental review laws is what already
10SPRING 2010
places the country in a leadership position with regard to biodi-
versity conservation. Signed by President Richard Nixon, NEPA
seeks “to promote efforts which will prevent or eliminate dam-
age to the environment and biosphere and stimulate the health
and welfare of man.”55 These environmental impact statements
shall “recognize the worldwide and long-range character of
environmental problems and, where consistent with the foreign
policy of the United States, lend appropriate support to initia-
tives, resolutions, and programs designed to maximize interna-
tional cooperation in anticipating and preventing a decline in
the quality of mankind’s world environment.” They should also
“initiate and utilize ecologica l information usef ul in restoring,
maintaining, and enhancing the quality of the environment.”56
Applicable Council on Environmental Quality (“CEQ”)
regulations make NEPA rules “binding on all Federal agencies”
and as “a supplement to its existing authority and as a mandate
to view traditional policies and missions in the light of the Act’s
national environmental objectives.” Each “agency of the Fed-
eral Government shall comply with that section unless existing
law applicable to the agency’s operations expressly prohibits or
makes compliance impossible.57 The epitome of a “look before
you leap” mandate, NEPA has been held to apply to a long list
of federal actions with impacts upon biodiversity for some time
now,58 and long-standing triggers on whether an action will
“significantly affect the environment” include proximity to park
lands, prime farmlands, wetlands, wild and scenic rivers, eco-
logically critical areas, historic or cultural resources, and the
degree to which the action may adversely affect an endangered
or threatened species or its habitat.59
Because of its demand for accurate technical informa-
tion, NEPA is often at the center of cutting edge environmental
issues, such as those revolving around biodiversity loss and cli-
mate change.60 And because of its positive procedural impact,
NEPA (and all other open government laws such as the U.S.
Freedom of Information Act61) is a model for CBD Article
10 Sustainable Use, Article 14 Impact Assessment, Article 17
Exchange of Information, and Article 18 Technical and Scien-
tific Cooperation. In the U.S., this is particularly true for pro-
tecting federal public lands across jurisdictions (including lands
and waters adjacent to Canada and Mexico), actions with federal
permit approval (e.g., pollution, wetlands, species take), or any
other major federal agency action.62
Equity Under the Convention
Article 14 is a bridge provision of sorts in the CBD because
it links the three objectives of the Convention with basic infor-
mation needs.63 Not only does Article 14 contemplate the
examination of environmental impacts of many different types
of actions, but it also acknowledges the existence of “adverse”
actions and seeks to “minimize” them.64 Information empow-
ers the general public, in rich and poor c ountries alike, and in
regions with different levels of biological diversity. The cen-
tral “exchange” of the CBD is to provide money-poorer and
biodiverse-rich countries (and their entities) with income while
providing cash-rich but biodiverse-poorer countries (and their
entities) with access to the benefits of biodiversity.
Information is also at root of the Convention’s “Access”
articles: Article 15 (Access to Genetic Resources) and Article 16
(Access to and Transfer of Technology), both of which institu-
tionalize an incentive to conserve biological diversity in devel-
oping and developed countries alike. A careful read of these
two articles reveals a similarity to the conservation provisions
under CBD Article 8, namely the establishment of a framework
for reciprocal access and an abundance of qualifying phrases
(“as appropriate” or “shall endeavor”) that reinforce the ulti-
mate freedom to contract, which Articles 15 and 16 authorize
and encourage. In other words, the CBD encourages access to
genetic resources but only on “mutually agreed terms.”65 The
principle of “prior informed consent,” is similarly prominent in
this portion of the treaty.66 “In many respects, U.S. scientists and
genetic resource specialists welcome the central and clarifying
role the CBD plays with regard to genetic resources . . . many
scientists stress that the more consultative way of collecting
samples preceded the CBD, and that those scientists and institu-
tions that pay attention to the needs of other nations do best in
securing biological research.”67
The “equity” provisions of the CBD are noteworthy for the
balance struck in the text language.68 Although parties retain
the final say over their own genetic resources, each party “shall
endeavor to create conditions to facilitate access” to those
resources consistent with “the objectives of this Convention.”69
Similarly, under Article 16, transfer of technology shall be pro-
vided u nder “fair and most favourable term s” (for developin g
countries) but shall be consistent with “intellectual property
rights” (for developed countries).70 Each “Party shall take . . .
policy measures, as appropriate, to provide for the effective par-
ticipation in biotechnological research activities by those Con-
tracting Parties, especially developing countries, which provide
the genetic resources for such research.”71 And developed coun-
try Parties shall provide new and additional financial resources
to enable developing country Parties to meet the agreed incre-
mental costs72 to them.73 The CBD’s Bonn Guidelines (Access
to Genetic Resources and Fair and Equitable Sharing of the Ben-
efits Arising out of their Utilization) flesh out the meaning of
these treaty articles in a constructive and generally agreed upon
way.74
Relatedly, the Food and Agriculture Organization’s
(“FAO”) International Treaty on Plant Genetic Resources
(“ITPGR”), wh ich the U.S. signed under President George W.
Bush and which the Obama administration now seeks to ratify,
supports the “conservation and sustainable use of plant genetic
resources” and explicitly describes “harmony with the Conven-
tion on Biological Diversity” as one of its primary objectives.75
The ITPGR’s successful ABS provisions on the sustainable use
of genetic resources for certain food crops is a significant diplo-
matic break-through.76 This equity model has been created by
the U.S. and the rest of the world. It works, particularly because
of its model standard material transfer agreement on ABS based
upon a consensual multilateral bank of genetic resources.77 It is
11 SUSTAINABLE DEVELOPMENT LAW & POLICY
a foundation of success from which the U.S. and the CBD can
continue to build upon.
U.S. HISTORY AND INTERESTS WITH THE CBD
LEADERSHIP BY EXAMPLE
It was the United States who championed the idea of a Bio-
diversity Treaty in the 1980s, and was influential in getting the
effort off the ground in the early 1990s. Formal negotiations of
the Conventio n began in Februa ry 1991 with th e goal of com-
pleting negotiations in time for the United Nations Conference
on Environment and Development in June 1992.78 Beginning
with the first Conference of Parties (“COP”) in 1994, the United
States has sent a delegation of “observers” to CBD meetings
of all kinds, including the most recent Conference of the Par-
ties (COP 9 in Germany), providing necessary and constructive
advice on the work programs of the Convention. Many countries
still recognize the substantial contributions the United States has
made to global conservation over the past century.
Today, the United States is essentially the last holdout to
the CBD. This is a major abdication of American leadership and
expertise in biodiversity matters. While there have been some
success stories, overall biodiversity79 has continued to decline
worldwide. These struggles exist despite the laudable 2010 CBD
biodiversity targets, which will not be met.80 Now is an apt time
for the United States to chart an intelligent course based on what
has been learned81 and built.82
U.S. RATIFICATION PROGRESS IN THE 1990S
Previous history on the U.S. CBD ratification effort is
important in understanding the current political and legal dynam-
ics. When President Clinton and his administration transmitted
the Convention to the U.S. Senate, after extensive consultations
with all interested parties, he did so with “Seven Understand-
ings” that accompanied the eventual bipartisan 16-3 positive
vote out of the Foreign Relations Committee in 1994.83 Clinton
stated: “Biological diversity conservation in the United States
is addressed through a tightly woven partnership of Federal,
State, and private sector programs in management of our lands
and waters and their resident and migratory species. There are
hundreds of state and federal laws and programs and an exten-
sive system of Federal and State wildlife refuges, marine sanc-
tuaries, wildlife management areas, recreation areas, parks, and
forests. These existing programs and authorities are considered
sufficient to enable any activities necessary to effectively imple-
ment our responsibilities under the Convention. The Adminis-
tration does not intend to disrupt the existing balance of Federal
and State authorities throug h this Convention. ” In addition, in
August 1994, the U.S. State Department engaged in eleven writ-
ten CBD question/answers with a block of Senate Republicans
that has also become part of the treaty’s ratification history.84
The Senate ratification process thereafter stalled.
THE SEVEN UNDERSTANDINGS AND ELEVEN ANSWERS
These collective understandings, interpretations, and clari-
fications are a crucial part of any eventual U.S. implementing
package, and possessed wide bipartisan and interest group
support when drafted. The treaty’s main legislative history,
addressed and explained in order of the Senate’s Seven CBD
Understandings below, also draws upon the Eleven Republican
Questions and Answers, as well the Memorandum of Record
(“MOR”) submitted by the Secretaries of Interior, Agriculture,
and State.85
1) The Government of the United States of America under-
stands that Article 3 references a principle to be taken
into account in the implementation of the Convention.
Article 3 of the Convention reaffirms that countries such as
the United States possess the sovereign right to use 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.” This First
Understanding makes clear that the principle of non-harm, well
accepted in international law, must be understood “in the spe-
cific context within the Convention.”86
2) It is the understanding of the Government of the United
States of America with respect to provisions address-
ing access to and transfers of technology that: a) “fair
and most favorab le t erms” in Article 16(2) means
terms that are v oluntarily agreed to by all parties to
the transaction; b) with respect to technology subject to
patents and other intellectual property rights, Partie s
must ensure that any access to or transfer of technol-
ogy tha t occurs reco gnizes and is consistent wit h the
adequate and effective protection of intel lectual prop-
erty rights, and that Article 16(5) doe s not al ter this
obligation.
Article 16 of the Convention, entitled “Access to and Trans-
fer of Technology,” is one of the central provisions of the treaty,
noteworthy for its purposeful give and take. The United States’
understandings here make clear the Government’s stance on the
basic primacy of contract and respect of legally protected prop-
erty rights within the purposes of the Convention.87 This Second
Understanding is related to the next (number Three).
3) It is the understanding of the Government of the United
States of America with respect to provisions addressing
the conduct and location of research based on genetic
resources th at: a) Article 15(6) applies only to scien-
tific research conducted by a Party, while Article 19(1)
addresses measures taken by Parties regard ing scien-
tific measures conducted by either public or pr ivate
entities; b) Artic le 19(1) cannot serve as a basis for
any Party to unilaterally change the terms of existing
agreements involving public or private U.S.entities.
Article 15 of the Convention governs “Access to Genetic
Resources” and is generally ruled by “prior informed consent of
the Contracting Party providing such resources.”88 CBD Article
19(1) governs policy measures for the effective participation in
biotechnological research activities by developing countries,
and this understanding makes clear that pre-existing agreements
are not changed by that article. In addition, the United States’
12SPRING 2010
signature to the International Treaty on Plant Genetic Resources
for Food and Agriculture (“ITPGR”) is “in harmony with the
Convention on Biological Diversity.”89 The ITPGR compli-
ments and supplemen ts the CBD by reducing the transaction
costs of ensuring fair and equitable benefit sharing for those
crops included in the ITPGR’s multilateral system.
Together, the intellectual property provisos in Understand-
ings Two and Three are significant, resolving a central concern
of the i nfluential biotech industry in t he Unit ed Stat es.90 In
actuality, the “biotechnology” industry is many industries pre-
mised upon using nature’s components and human ingenuity to
make items of higher value. A “recombinant DNA technique”
of altering species has proven to be particularly lucrative over
the past several decades. Since the early 1990s, there has been
an explosion of applications for biotechnology and biomimicry
in medicine, pharmacology, agriculture, criminal justice, indus-
trial products, toxic clean up,
and consum er goods. There are
thousands of such private busi -
nesses now, worth at least hun-
dreds of billions of dollars.91
Many American businesses
possess a tangible interest in
how the Convention is imple-
mented and have been strong
supporters of the ratification.92
Now, with over fifteen years of
experience under its belt, the
COP to the Convention would
like to complete the negotia-
tions of an international regime
on ABS by October 2010 at
the next COP in Japan.93 The
United States needs to be a for-
mal part of this important mul-
tilateral dialogue, both in developing the CBD ABS policy and
then implementing it. The powerful World Trade Organization
(“WTO”) has constructively entered this dialogue by instructing
the WTO TRIPS Council to examine “the relationship between
the TRIPS Agreement and the Convention on Biological Diver-
sity, the protection of traditional knowledge and folklore, and
other relevant new developments raised by members.”94 The
World Intellectual Property Organization (“WIPO”) is also
engaged in reconciling the relationship between biotechnologi-
cal research activities and the CBD.
4) It is the understanding of the Government of the United
States of America that, with respect to Article 20(2),
the financial resources provided by developed country
Parties are to enab le develop ing count ry Parties to
meet the agreed full incremental costs to them of imple-
menting measur es tha t ful fill th e obli gations of the
Convention and to benefit from its provisions and that
are agreed between a developing country Party and the
institutional structure referred to in Article 21.
Because Article 20(2) of the Convention provides for “new
and additional financial resources to enable developing country
Parties to meet the agreed full incremental costs to them,” this
U.S. understanding limits the committed U.S. financial resources
to “agreed” costs and “agreed” payments by the GEF under
Article 21 of the Convention. The Senate has asserted that this
arrangement is a financial “safeguard” for the United States.95
5) It is the understanding of the Government of the United
States of America that, with respect to Article 21(1),
the “author ity” of the Conference of the Parties with
respect to the financial mechanism relates to determin-
ing, for purposes of th e Convention, the policy, strat-
egy, program priorities and eligibility criteria relating
to the access to and utilization of such resources.
This understanding makes it clear that the Convention itself
does not dictate the amount of such financial resources to be
made available. The GEF allows
countries such as the United
States to better control financial
resources it contributes. In other
words, the U.S. has protection
from a majority of CBD mem-
bers mandating certain funding
levels because the Convention
recommends funding for pro-
gram priorities but the GEF
approves and provides that
funding.96
6) The Gove rnment o f the
United States of America under-
stands that the decisi on to be
taken by the Conference of the
Parties un der Article 21, Para-
graph 1, concerns “the amount
of re sources needed” b y the
financial mechanism, and that noth ing in Article 20
or 21 authori zes the Conference of the Parties to take
decisions concerning the amount, nature, frequency or
size of the co ntributions of the Parties to the institu-
tional structure.
This provision further protects, clarifies, and secures U.S.
funding under this treaty consistent with the two previous under-
standings. The GEF and U.S. participation in it secures these
American financial interests.
7) The Government of the United States of America under-
stands that although the provisions of this Convention
do not apply to any warship, naval auxiliary, or other
vessels or aircraft owned or op erated by a State and
used, for the time being, only on government non-com-
mercial service, each State shall ensure, by the adop-
tion of appropriate measures not impairing operations
or operatio nal capabilities of such vessels o r aircraft
owned by it, that such vessels or aircraft act in a man-
ner consistent, as far as is reasonable and practicable,
with this Convention.
Many American
businesses possess a
tangible interest in
how the Convention is
implemented and have
been strong supporters
of the ratification.
13 SUSTAINABLE DEVELOPMENT LAW & POLICY
Although the “provisions of this Convention shall not affect
the rights and obligations of any Contracting Party deriving
from any existing international agreement,” Article 22(1), the
United States “will make every effort to ensure that U.S. sov-
ereign immune vessels and aircraft meet the standards of the
Convention.”97
THE BENEFITS OF U.S. RATIFICATION AND OF
FULL MEMBERSHIP IN THE CBD
GLOBAL SECURITY BY ENGAGEMENT
Thus, the CBD has catalyzed significant natural resource
conservation, while also establishing itself as a valuable part-
ner for diverse stakeholders all over the planet. A number of
U.S. interests—national security, environmental, scientific, bio-
tech industry , farming and f ood supply, religious, educational,
Native American—would benefit from CBD ratification and
have called for international engagement by the U.S. in these
matters.98 Perhaps the greatest
immediate challenge is to priori-
tize the CBD within the context
of a busy U.S. Senate schedule
including the UNCLOS99 and
climate/energy considerations.
There is no doubt that the
CBD should be a crucial part of
the global environmental agenda
for President Obama and his
administration, and would help
constr uctive U.S . multilat eral
outreach on such diverse issues
as international security, pov-
erty alleviation, and economic
opportunity. Even the Bush
II Administration, which was
perceived by many as skepti-
cal toward environmenta l pro-
tection, made positive statements about the CBD. At the Sixth
COP in 2002, a high-ranking U.S. State Department official
proclaimed:
The United States recognizes the importance of the Con-
vention on Biological Diversity (CBD ) as a valuable
forum for international discussions on issues related
to biological diversity. We appreciate the opportunity
to participate … as we have in previous CBD delib-
erations, with the aim of furthering our shared goals
related to biological diversity … The United States is
committed to the objectives of the Convention, both
at home and abroad. This commi tment is reflected in
the vibrant, ever-growing range of public and private
sector programs and activities occurring throughout
the United States related to protecting and sustainably
using biological resources. The United States remains
equally committed to assisting partner countries in
their efforts to protect biodiversity through bilateral
assistance, through its contributions to regional and
international organizations and financial institutions,
through innovative debt reduction programs such as the
Tropical Forest Conservation Act, and through a broad
range of other benefit-sharing programs. In particular,
we are pleased to be one of the largest contributors to
the Global Environmental Facility (GEF)…100
At no point has any U.S. administration taken a significantly
different view of the U.S. relationship with the CBD, and there
continues to be strong interest by the U.S. Government in work
plans on forests, marine and coastal areas, invasive alien spe-
cies, Caribbean (and other eco-region) conservation, pollinators,
food security,101 and other Convention initiatives.
ACHIEVING STRATEGIC U.S. ECOLOGICAL AND
ECONOMIC GOALS
More is to be learned about species, natur al systems, a nd
the full economic benefits of biological diversity. The CBD’s
three underlying purposes—conservation, sustainable use, and
equity—are three principles that
the U.S. Government supported
even before the CBD was writ-
ten. Time has not changed the
conclusion for the United States
that “Senate advice and consent
would help complete the signifi-
cant efforts and sound principles
undertaken on a bipartisan basis
by this and the previous Admin-
istration. Having addressed
the appropriate and legitimate
concerns raised in the past, it is
now in the economic interests
of the United States to ratify
this agreement.”102 Further, it
is today even better understood
that biodiversity threats are liter-
ally economic threats.103
Full U.S. engagement could be determinative for the ongo-
ing ABS negotiations with regard to genetic and biological
resources under the CBD and other related multilateral instru-
ments. This area is another example of the inextricable relation-
ship between economics and ecology. Five studies, “which are
central elements of the negotiati ons,” were requested by the
CBD Secretariat at the last COP on ABS:104 (1) Recent develop-
ments in methods to identify genetic resources directly based on
DNA sequences; (2) Identification of the different possible ways
of tracking and monitoring genetic resources through the use of
persistent global unique identifiers, including the practicality,
feasibility, costs, and benefits of the different options; (3) How
an international understanding on ABS could be in harmony and
be mutually supportive of the mandates of and coexist alongside
other international instruments and forums that govern the use
of genetic resources; (4) Development of a comparative study of
the real and transactional costs involved in the process of access
to justice across jurisdictions; and (5) How can compliance be
Failure to engage will
mean closed doors
on access to genetic
resources for U.S.
companies and continuing
market conflicts over
U.S. biotech exports.
14SPRING 2010
ensured in conformity with Indigenous Peoples and local com-
munities customary law, national law, across jurisdictions, and
international law, including human rights and trade.105
These are issues for which the United States simply must
not be on the CBD sidelines because the United States has
great interest in continued biological access. The United States
is already engaged in current and productive CBD-related dis-
cussions at the FAO, WTO and WIPO on intellectual property
rights and biological resources. A three-legged chair is ulti-
mately unstable. The CBD brings a fourth and vital perspec-
tive in the overall debate, building upon the ongoing use of the
non-binding but influential Bonn Guidelines.106 As one genetic
researcher has noted, “We need communication between differ-
ent communities of folks—research talking to government—
in order to solve the problems we face.”107 Failure to engage
will mean closed doors on access to genetic resources for U.S.
companies and continuing market conflicts over U.S. biotech
exports. Failure to engage means lack of full U.S. Government
participation in the domestic and global conservation challenges
for which it has tremendous expertise.
OUTSTANDING LEGAL ISSUES
Based on the preceding analysis, fully engaging and join-
ing the CBD raises three main issues for U.S. biodiversity
diplomacy:
First, what will actually be negotiated on ABS at COP 10 in
Japan in October 2010, and what will be the follow-up in 2011
and afterwards?108
Second, how will global warming, associated climate
change, and ocean acidification impact the CBD’s future agenda?
Third, how will the CBD continue to intersect with other
closely aligned treaties and multilateral entities including the
ITPGR, UNCLOS, CITES, and the World Trade Organization?
ACCEPTED PRINCIPLES
Despite the real challenges faced by the global community
in stemming the environmental crises leading to biodiversity
loss, climate change and ocean degradation, certain legal prin-
ciples, and scientific facts have emerged over the past fifteen
years:
1. The CBD is a fr amework convention. It provides the
foundation for consensual action by parties, but does
not dictate any particular results. This structure has
successfully allowed the CBD to provide a template by
which to solve real world problems while accommodat-
ing national circumstances.
2. The United States is already in full accordance with the
substantive terms of the CBD, which provide discre-
tion and flexibility based upon national circumstances.
No new legislation at either the federal or state level
is necessary for the United States to ratify and imple-
ment the CBD immediately, and future legislative and
administrative amendments would not be precluded.
3. Sovereignty is fully retained by the United State on all
issues, with no exceptions. Again, because of the terms
and nature of the CBD, there is no plausible current
scenario where the United States, the states, or any citi-
zen would be forced to take an action or refrain from
an action because of the treaty itself. The CBD does
not authorize any legal causes of action in U.S. federal
or state courts.109 In addition, to the extent the United
States was to have a dispute with another nation-state
party under CBD Article 27, the United States need
only submit to negotiation and, if that fails, non-bind-
ing conciliation.
4. The United States needs a formal seat at the table for
the ongoing ABS “negotiations” at the Convention on
Biological Diversity, as well as issues pertaining to bio-
diversity conservation and sustainable development.110
Even if an ABS agreement is reached in 2010 or there-
after, the United States will have tremendous interest in
implementing any agreement at all available fora, par-
ticularly as it relates to “prior informed consent” and
“mutually agreed terms.” The United States will also
want to ensure that the new CBD rules on ABS are con-
sistent with the FAO rules the U.S. recently helped cre-
ate under the ITGPR, and negotiations at both the WTO
and WIPO.
5. Addr essing global warming is a monumental global
development issue and environmental crisis that needs
U.S. leadership. Climate change impacts biodiversity
and is itself impacted by biodiversity.111 Many impor-
tant global security issues now flow from the CBD,
including ways in which healthy forests, oceans and
other ecosystems help stabilize the planet’s health and
climate. The CB D provides unparalleled opportunities
to stem the climate challenge.
DEBUNKED MYTHS
In addition to CBD lessons learned, a few false and persis-
tent attacks must be addressed:112
1. “The CBD will lock up land.” This is absolutely not
true. No land or water or air use changes in the United
States are required or anticipated as a result of the
Convention. Nothing in the text of the treaty, nor its
implementation over the last fifteen years, gives even
the slightest indication that the CBD will require any
alteration of any natural resource issue/biological
diversity issue in the United States. For example, no
new large networks of wilderness or roadless area can
or will be required by ratification of this treaty. Fur-
ther, no changes to private land rights would occur as
a result of treaty ratification. Because CBD is a frame-
work convention, specific actions under the treaty must
be agreed upon by the U.S. Government—fully consis-
tent with U.S. legal procedures and rights.
2. “The UN will win lawsuits against me.” This, too, is
incorrect. Nothing in the text of the treaty, nor its imple-
mentation, gives any authority under the U.S. Constitu-
tion or any other law to provide an independent cause
of action in a U.S. court. Biodiversity concerns already
15 SUSTAINABLE DEVELOPMENT LAW & POLICY
are a part of NEPA analysis, irrespective of U.S. ratifi-
cation of the treaty. The CBD is not regulatory.
3. “The operation of the CBD will cause financial harm
to the United States.” This is also wrong. Participation
in the Convention will save the United States money
in the long run. The treaty does not mandate any sig-
nificant expenditure of U.S. funds and, indeed, would
almost certainly result in the more efficient use of
financial resources by helping coordinate federal agen-
cies, link other international agreements, and utiliz-
ing all available capital networks. Notably, the United
States is a member of the GEF,113 which is now the
approved financial mechanism of the Convention but
was not so when the Senate Foreign Relations Com-
mittee last actively took up the Convention. The GEF
gives United States more voting control than does a
straight up/down vote at the CBD.114 The long-term
objectives of the GEF Biodiversity Program are to
catalyze sustainability of protected area systems, main-
stream biodiversity in production landscapes/seascapes
and sectors, safeguard biodiversity, and build capac-
ity on access and benefit sharing.115 CBD ratification
would reinforce these efforts and give the U.S. even
more influence.
NEXT STEPS FOR THE OBAMA ADMINISTRATION
AND THE U.S. SENATE
PRIORITIZATION AT THE STATE DEPARTMENT
The many and diverse supporters of the CBD have been dis-
appointed that Secretary Hillary Rodham Clinton’s State Depart-
ment has to date omitted the CBD as a priority treaty deserving
of short term ratification.116 This can be easily rectified. While
immediate ratification of the U.N. Law of the Sea Convention is
certainly desirable, the trio of oceans, climate, and overall biodi-
versity are sensibly considered together. There is a logical argu-
ment to be made that the ITGPR should be considered in tandem
with the CBD because the two are complementary.
HEARING BEFORE THE SENATE FOREIGN RELATIONS
COMMITTEE
Updating and building upon the information already gath-
ered by the U.S. Senate, as well as the records of the U.S.
Department of State and other federal agencies, the Senate For-
eign Relations Committee should as soon as possible hold a rati-
fication oversight hearing before a vote on the Senate floor, for
which 67 “aye” votes are necessary under the U.S. Constitution.
Although a new hearing is not technically required by the Sen-
ate rules for ratification, it would allow the new Administration
to brief the Congress and the public on its plans and changes
that have occurred over the past fifteen years. Such a hearing
would allow further consensus to develop around the key posi-
tive points of the CBD.
Chairman John Kerry (D-MA) and Ranking Member Rich-
ard Lugar (R-IN), both past supporters of the Convention, should
receive updates on the following issues:
1. Ac cess and benefit -sharin g (“A BS”) of gen etic
resources and other components of biological diversity,
current negotiations at the CBD and other fora, and the
precise relationship and lessons of the ITPGR to the
CBD. The ITPGR contains an ABS multilateral system
for essentially 35 core plant species along with a stan-
dard model material transfer agreement.117 The ITPGR
negotiation and ratification effort was supported by the
Clinton and Bush II administrations.118
2. Unde rstanding of the intersection between the CBD
and global warming/climate change/ocean acidification
abatement efforts.
The following individuals could potentially be asked to
testify:
International Community
• Representative of the CBD
• Repr esentative from the United Nations Environm ent
Program
• Minist er(s) from allies that have ratified the CBD (e.g.,
Japan, Germany, United Kingdom, India, Mexico, South
Africa, Iraq).
U.S. Government
• Secretary of State, or Undersecretary
• CEQ Head
• EPA Administrator
• Secretary of the Interior
• Secretary of Agriculture
• Secretary of Commerce, Administrator of N.O.A.A.
Private and Public Interest Sectors
• Rep resentat ives from bio-technology and agriculture
industries
• Representatives from scientific, educational, and conserva-
tion organizations
• Expe rts on international relations, global environment,
national security
COMMITTEE SUPPLEMENTAL REPORT (PROPOSED)
A supplemental report out of the Senate Foreign Relations
Committee to the full Senate for floor consideration should
affirm:
1. No new or state or federal law is needed to ratify or
implement the Convention on Biological Diversity, and
the United States retains all existing sovereignty;
2. The ITPGR could be ratified by the U.S. Senate in tan-
dem with the CBD, as the two agreements’ provisions
on ABS are complimentary and mutually supportive
with U.S. diplomatic leadership;
3. The Senate does not need to take a position upon ratifi-
cation of the Cartagena Protocol on Biosafety because
the CBD does not require the U.S. to approve it now (or
ever).119
4. Existing Congressional committees will continue to set
“biodiversity” funding levels with sufficient instruction
and oversight through the federal appropriations pro-
cess mandated by the Constitution.
16SPRING 2010
Endnotes: Joining the Convention on Biological Diversity
continued on page 44
CONCLUSION
U.S. leadership is needed to protect domestic and global
biological resources. According to the best experts in the field,
the past 50 years have witnessed changes in natural systems
more rapid and extensive than in any comparable period of time
in human history. The species extinction rate has increased by as
much as 1,000 times background rates, and upward of one-third
of mammal, bird, and amphibian species are now threatened
with extirpation. The time to act is now. It is time for the United
States to join the CBD.
The United States was a leader in drafting the Convention
on Biological Diversity in the late 1980s and early 1990s, and
the United States again needs to protect its interests. The United
States currently has only observer status in the COP. Ratifica-
tion of the Convention will, for instance, allow the U.S. to gain
an official seat at the table for future decisions and negotiations
under the Convention, including the pending negotiations of an
ABS legal binding instrument.
The Convention will not necessitate the addition, repeal,
or change of any U.S. laws. The U.S. State Department’s trans-
mittal package to the U.S. Senate found that no new legislation
would be needed to implement the Convention. President Clin-
ton signed the Convention and the State Department transmitted
it with accepted legal understandings in 1993-94. These under-
standings included state ments ensuring that “the existing bal-
ance of Federal and State authorities” would not be disrupted
and that the “intellectual property rights” of Americans would
not be weakened under the treaty. The Senate Foreign Relations
Committee favorably reported the Convention to the Senate
floor in 1994 on a strong and bipartisan vote of 16-3. This should
not be a controversial issue.120 The CBD’s values are as Ameri-
can as apple pie.121
The CBD is an important tool to help address the impacts
of global warming, unstable weather patterns, and other abrupt
changes caused by stressed ecological systems. The CBD helps
humans and wild species impacted by these habitat changes
through adaptation measures. Protecting biodiversity maximizes
the resilience of ecosystems and large regions, indeed the entire
world, so that use of land, water and air is done sustainably. This
is good for food and water security, overall global well-b eing,
and the long-term maintenan ce of biodiver sity’s many eco-
nomically beneficial services. The CBD is the one legal tool that
brings these important issues together. It should be ratified by
the U.S. Senate in short order because it is without legal contro-
versy, it will benefit the United States’ people, and it will make
the world a better place for all its inhabitants.
1 Convention on Biological Diversity, opened for signature Jun. 5, 1992, 1760
U.N.T.S. 79, 31 I.L.M. 818 [hereinafter CBD].
2 Id. art. 2.
3 See generally S. REP. NO. 103-30, at 2-3 (1994) (The Senate Report on the
CBD is an authoritative compilation of issues on both the treaty and U.S. inter-
ests in biological diversity).
4 See, e.g., EDWARD O. WILSON, DIVERSITY OF LIFE 343 (1992) (“The Sixth
Great extinction spasm of geologic time is upon us, grace of mankind.”). See
generally STEPHEN M. MEYER, THE END OF THE WILD (2006) (showing that many
recent studies confirm this significant downward trajectory).
5 See generally IUCN Red List, Species Extinction – The Facts (2007) [here-
inafter IUCN], available at http://cmsdata.iucn.org/downloads/species_extinc-
tion_05_2007.pdf.
6 See Robert Costanza et al., The Value of the World’s Ecosystem Services
and Natural Capital, NATURE, May 15, 1997, at 253-260; see generally
Gretchen Daily et al., Ecosystem Services: Benefits Supplied to Human Societ-
ies by Natural Ecosystems, ISSUES IN ECOLOGY, Spring 1997.
7 See BERNSTEIN ET AL., CLIMATE CHANGE 2007: SYNTHESIS REPORT 72-73 (2007)
(asserting that the specter of global warming is a huge shadow over the planet’s
plants and animals, given that we are already above carbon dioxide (and other
greenhouse pollutant) limits where potentially irreversible ecological changes
could occur. The Intergovernmental Panel on Climate Change (“IPCC”) found
that the resilience of many ecosystems is likely to be destroyed by the danger-
ous combination of global warming threats and more “traditional” threats.);
Chris D. Thomas et al., Extinction Risks from Climate Change, NATURE, Jan.
8, 2004, at 145-48 (concluding that too many species are already extinct due to
global warming, such as dozens of harlequin frog species, or endangered with
extinction, such as the polar bear, Edith’s checkerspot butterfly, Kittlitz mur-
relet, American pika, and various coral reef ecosystems); Camille Parmesan
& Gary Yohe, A Globally Coherent Fingerprint of Climate Change Impacts
across Natural Systems, NATURE, Jan. 2, 2003, at 37-42 (highlighting that
numerous scientists have reported a “globally coherent fingerprint of climate
change impacts across natural systems” with three major manifestations:
(1) earlier timing of spring events and later autumn events (“phenology”
changes); (2) extension of species’ range poleward or upward in elevation; and
(3) decline in species adapted to cold temperatures and an increase in species
adapted to warm temperatures.); see generally CAMILLE PARMESAN & GALBRAITH
HECTOR, PEW CENTER ON GLOBAL CLIMATE CHANGE, OBSERVED IMPACTS OF GLOBAL
CLIMATE CHANGE IN THE U.S. (2004) (reporting that scientists have already
predicted significant extinction rates by 2050 under a spectrum of emissions
scenarios).
8 James Hansen et al., Target Atmospheric CO2: Where Should Humanity
Aim?, THE OPEN ATMOSPHERIC SCI. J., 217, 217-29 (2008) (positing that 350
parts per million of atmospheric carbon dioxide pollution levels should be our
societal target despite being at 385 ppm in 2009).
9 See, e.g., UNITED NATIONS ENVTL. PROGRAMME, BLUE CARBON: THE ROLE OF
HEALTHY OCEANS IN BINDING CARBON 5 (2009).
10 See, e.g., The IUCN Red List of Threatened Species, Summary Statistics
(2010) (showing the plants and animals currently threatened with extinction),
available at http://www.iucnredlist.org/about/summary-statistics; POPULATION
VIABILITY ANALYSIS (Steven Beissinger & Dale McCullough, eds., 2002) (cross-
cutting examination of mathematical degree of risk facing imperiled species;
scientific data on shrinking species’ range, resource availability, and other
human-induced threats).
11 See Millenium Ecosystem Assessment, available at www.millenniumassess-
ment.org/en/index.aspx (indicating that the Millennium Assessment, finished in
2005, is a series of synthesis, scale, framework, and summary reports on biodi-
versity, desertification, wetlands and water, business and industry, and public
health).
12 See MILLENIUM ECOSYSTEM ASSESSMENT, MILLENIUM ECOSYSTEM ASSESSMENT
FINDINGS, available at www.millenniumassessment.org/documents/document.
359.aspx.ppt [hereinafter FINDINGS].
Endnotes: Joining the Convention on Biological Diversity: A Legal and
Scientific Overview of Why the United States Must Wake Up
