COP-11 of CBD now happening in Hyderabad is a golden opportunity to take up issues that are out of agenda and also that concern India. Our failure in doing so will prove expensive for the rich biodiversity of our country.
As the XIth meeting of the Conference of Parties (COP) to the two-decade-old Convention on Biological Diversity (CBD) is set to take place in Hyderabad, the state of CBD begs several key issues to be addressed — issues that are not on the agenda of the meeting.
The treaty had marked a paradigm shift by incorporating the objectives of sustainable use and equitable benefit sharing along with conservation, and was fairly balanced along the North-South divide. However, the enforcement of the treaty at the global level has failed to live up to the expectations invested in it. The third edition of the Global Biodiversity Outlook published by the CBD secretariat in 2010 has acknowledged that the CBD has failed to deliver as shown by a number of indicators.
Although the treaty negotiations had a strong and effective presence of the Group of 77, the years since its coming into force have seen a progressive weakening of G77, which is probably the main reason why the treaty was rendered ineffective, much to the gratification of the US, the only major country that refuses to ratify the treaty for its worries about the treaty’s provisions for equitable benefit sharing for accessing biodiversity, the preferential terms for technology transfer and so on. In fact, the US could easily have ratified CBD and remained happy about the treaty’s digression from the core obligations of the contracting parties. For instance biopiracy remains unabated in spite of two decades of CBD that makes biopiracy an international offence.
Let us look at the trajectory CBD has been led to take vis-a-vis its legal status. The treaty has the unenviable distinction of being challenged by certain contracting parties themselves without denouncing the treaty or without attempting to amend the treaty text. The treaty has categorical and legally binding provisions on access to biodiversity and equitable benefit sharing (ABS), yet when the proposal for a protocol on ABS was mooted years ago the western countries sought the instrument to be legally non-binding. The ABS protocol negotiators had overcome this challenge and the Nagoya Protocol on ABS has been concluded, yet the text remains rather incomplete without addressing the compliance mechanism, and still when the issue of compliance mechanism came up for discussion at the recently held meeting of the Inter-governmental Committee on Nagoya Protocol, New Delhi, Western countries have unfailingly raised opposition to the proposed legally binding nature of the compliance mechanism!
Attempts to argue away the legal strength of CBD has been part of an effort to weaken the comprehensive and well balanced treaty that it is. CBD is not a declaration, a statement of principles, an international program or a set of guidelines. CBD does not belong to the genre of ‘soft law’ that these instruments are, as some including the CBD secretariat claim, it is international law (there is no ‘hard law’ as opposed to ‘soft law,’ for the latter is no law at all). It is a multilateral treaty that the contracting parties are legally obliged to implement. However, articles committing parties to ‘endeavour to’ or bearing caveat-like ‘as far as possible’ are less binding. There are only two issues in the CBD that called for further development in order to take on implementation course: biosafety (Article 19.3) and liability and compensation beyond national jurisdiction (article 14.2). The CBD explicitly states that it does not provide for exemptions.
S Faizi is an ecologist specialising in international environmental policy. He had been a negotiator in the Intergovernmental Negotiation Committee on CBD I that formulated the CBD text. Member of CBD Expert Group on Poverty and Biodiversity and Board member of CBD Alliance, global network of NGOs on CBD issues. email@example.com