New Leadership Needed: the Convention on Biological Diversity

• Citation: Vol. 31 No. 1
• Publication year: 2016
• topic: Environmental Law,Intellectual Property

New Leadership Needed: The Convention on Biological Diversity

Catherine Klein

NEW LEADERSHIP NEEDED: THE CONVENTION ON BIOLOGICAL DIVERSITY

ABSTRACT

The Convention on Biological Diversity (CBD) endorses an international effort to protect and sustain Earth's biological resources. The 20th century marks the most massive global extinction in Earth's history, one that is inextricably connected to the human fingerprint. The CBD addresses this global issue by incentivizing the protection of genetic resources and by endorsing equitable sharing of biological information. The CBD, while well intentioned, has not made large strides in reversing global biodiversity loss. This Comment reflects on how the CBD has failed to stabilize the decline of biological diversity and urges the United States, a global powerhouse, to finally ratify the Convention. This Comment argues that the CBD should amend itself and approach the problem in new ways—by adding a new enforcement mechanism and by creating two new protocols that target specific global pressures on biodiversity. A new enforcement mechanism should model that of the Montreal Protocol's, the most successful international environmental treaty. The first new protocol should address the global pressure of climate change by focusing on methane emissions from livestock production. The second new protocol should address the global pressure of habitat degradation by instituting a cap and trade system designed to combat deforestation. The addition of sanctions and new protocols could vastly improve the success of the Convention and efficiently address global loss of biodiversity.

Introduction

The Convention on Biological Diversity (CBD) and its accompanying protocols endorse an international effort to protect and sustain Earth's biological resources for future generations.¹ The 20th century marked the most massive global extinction in Earth's history,² and "[w]hat distinguishes

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present-day extinctions from those that have occurred in the past is a distinctive human fingerprint."³ While determining extinction rates for all species is complex, scientists have successfully determined extinction rates of birds and mammals because of their recognizable skeletal remains.⁴ Background extinction rates would have the extinction of one species every four hundred years; bird and mammal species currently average an extinction of 20-25 species every 100 years.⁵ This makes the current rate of species extinction one thousand times the natural expected rate.⁶ The CBD addresses this rapid loss of biodiversity by attacking the problem in a unique way—by incentivizing the protection of genetic resources and the equitable sharing of information.⁷ The CBD, while well-intentioned, has not made significant strides in reversing global biodiversity loss.⁸ The treaty needs new leadership and amendments in order to effect change in a way that its drafters intended. The united States, as a global powerhouse, should ratify and amend the CBD and take charge as an international leader in the conservation of biodiversity.

The structure of this Comment reads as follows. Part I of this Comment explores the CBD, including its historical development, the U.S. response, and the two current protocols to the convention. Part II examines the value of biodiversity, current threats to biodiversity, and illustrates why the conservation of biodiversity is necessary for both economic and ethical reasons. Part III discusses the CBD's growing need for leadership and examines how the united States is in a unique position to affect that

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leadership. Part III also compares the CBD with the Montreal Protocol and the Kyoto Protocol.

Finally, Part III suggests amendments to the Convention on Biodiversity that the United States is in a prime position to make. These amendments include a new enforcement mechanism, which mirrors that of the Montreal Protocol, and two new protocols. The suggested protocols, unlike the current protocols, target identified global pressures on biodiversity. The first suggested protocol deals with the pressure of climate change, by focusing on methane emissions from livestock production. The second suggested protocol deals with the pressure of habitat degradation by narrowly tailoring a cap and trade system to combat deforestation.

I. The Convention on Biodiversity

In recognition of the imminent threat human activities pose to Earth's biological resources, the international community promulgated a treaty aimed at mitigating these threats.⁹ As is noted on the website dedicated to the Convention on Biodiversity, "the Earth's biological resources are vital to humanity's economic and social development."¹⁰ The United Nations Environment Programme (UNEP) is the leading international authority that seeks to advance sustainable development and advocate for the wellbeing of our global environment.¹¹ In 1972, UNEP was formed pursuant to U.N. General Assembly Resolution 2997.¹² UNEP prioritizes seven intersecting global environmental themes: climate change, disasters and conflicts, ecosystem management, environmental governance, chemicals and waste, resource efficiency, and the environment under review.¹³

In 1988, UNEP convened the Ad Hoc Working Group of Experts on Biological Diversity "to explore the need for an international convention on biological diversity."¹⁴ This group later developed into an established group of

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experts charged with the responsibility of creating an "international legal document for the conservation and sustainable use of biological diversity."¹⁵ This international legal document laid the foundation for the CBD.¹⁶

UNEP adopted the CBD on May 22, 1992 and it entered into force as international law on December 29, 1993.¹⁷ Thus far, 196 states have ratified the Convention, which includes all states but the United States and the Holy See.¹⁸ The CBD has three main objectives, as stated in the text of Article I: "(1) the conservation of biological diversity, (2) the sustainable use of its components, and (3) the fair and equitable sharing of the benefits arising out of the utilization of genetic resources."¹⁹ The Convention's text contains forty-two articles and two annexes.²⁰ The text broadly asserts that contracting parties must color their national decisions with conservation and sustainable use ideals,²¹ educate the public on the threats to biodiversity,²² and equitably share information, biotechnology, and financial resources with all states while taking into special consideration the needs of developing nations.²³

Not only must states ratify the Convention, but they must also implement it within their borders. Practically speaking, the implementation may be synthesized into four basic steps: "first, develop national strategies for conservation. [Second], establish a system of protected areas. [Third], begin to rehabilitate damaged ecosystems [and finally], integrate the consideration of conserving biological resources into national decision-making."²⁴ The CBD is both a trade agreement and a conservation agreement;²⁵ in addition to setting

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sustainability standards, it establishes the basic terms of trade of Genetic resources.²⁶

Genetic resources, as defined in Article 2 of the CBD, are genetic material of actual or potential value.²⁷ Genetic resources serve as the raw material for many valuable biotech products, from pharmaceuticals to genetically modified crops.²⁸ The rise of biotechnology has led to an expansive view of intellectual property rights, which now extend over some genetic resources that have been genetically altered by humans.²⁹ These intellectual property rights conferred by patent provide "incentive for research and development and promote the diffusion of ideas and information."³⁰ Missing, however, are analogous incentives for the preservation and development of naturally existing genetic resources, which in turn serve as building blocks for later genetically modified products.³¹ Some say this lack of analogous incentives creates an inequity for "traditional farmers and indigenous peoples [who] cannot protect their own current or historical investment in informal innovation and conservation."³² The CBD seeks to remedy this inequity by requiring contracting states to provide incentives for the conservation and sustainable use of components of biological diversity.³³

A. The U.S. Response

Although a signatory, the United States did not ratify the CBD, an omission that seemed wholly inconsistent with its historical policy stance on

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biodiversity³⁴ and its great tradition of public engagement.³⁵ In 1973, the United States became a global front-runner in the protection of biodiversity by passing the Endangered Species Act, which has been a model for other species protection efforts around the world.³⁶ In 1991, President George H. W. Bush addressed Congress stating:

Our efforts to enhance the quality of the domestic environment must be accompanied by comparable efforts toward global environmental quality. In these times, Americans are aware that our political and economic security is affected by actions occurring abroad. Likewise, we know that environmental threats do not stop at a line on a map. In the months and years ahead, we need to broaden our dialogue with other nations and international institutions and together address environmental issues that know no boundaries.³⁷

Ironically, it was the United States that promoted creating a biodiversity treaty in the 1980s and engaged in many of the negotiations leading up to its promulgation.³⁸ In 1993, President Bill Clinton strongly endorsed ratifying the CBD, noting that because of the strong U.S. environmental programs already in place, it would not be necessary to implement new programs that comply with the Convention.³⁹

The reason why the United States ultimately did not ratify the CBD is a matter of speculation, but likely stemmed from a desire to defend domestic lucrative...