There
has been an abysmal weakening of the negotiation position of the developing
countries. This is disappointing especially when one considers the unusual
strength maintained by developing countries in the CBD formulation negotiations.
In retrospect, it was this strength that enabled the developing countries to
totally reject the IUCN- (The World Conservation Union) drafted articles and the
underlying notions, such as States are simply ‘guardians or custodians’ of
biodiversity and not owners; payment of a levy to a proposed international fund
for biodiversity use within their territory; placing the principal emphasis on
access to biodiversity; and so on.
In
its clamoring for a convention on biodiversity in the late 80s, the key
objective of the U.S. was to legalize free and open access to biodiversity of
the Southern countries before they institute protective measures. It was indeed
a remarkable achievement of the Southern negotiators that they were able to
discard the IUCN draft articles and the notions contained therein that formed
the broad Western negotiation position.
It
was united and resourceful negotiations by the South that gave birth to a
balanced CBD, eliminating the prospect of a treaty for subjugating the most
important resource of the South (it is this North-South balance of CBD that
prompted the U.S., the original initiator of the convention proposal, to stay
away from the treaty).
But
such unity and efficiency have withered once the treaty came into force.
Developing countries have since remained largely reactive and at best defensive.
At Kuala Lumpur, the G of 77 (common negotiating forum of developing countries
within the UN system) was anything but effective, due in part to the late
decision on who would chair the meeting. The half-minded, Like Minded
Megadiverse Countries did not have any significant technical support. The
regional group meetings of Asia and Africa were largely composed of monologues.
New
Programs Questionable
The
Conference has adopted new programs of work on protected areas, mountain
biodiversity and technology transfer. The protected areas program is a means to
achieve the 2010 target of significantly reducing the loss of biodiversity, set
by the World Summit on Sustainable Development (WSSD). Although the role of
indigenous and local communities is factored in, there was no departure from the
exclusionary doctrine of protected areas, which has caused the dislocation of
people from conservation areas and locked them out of the conservation project.
While
the program on technology transfer seeks to promote ways to enable the transfer
of appropriate technologies to developing countries, the debate on the subject
did not address the issue of how the Parties have complied with the obligation
under the Convention to ‘take legislative, administrative or policy
measures’ to transfer technology including those protected by the intellectual
property regimes, on mutually agreed terms (Article 16.3), and to take exactly
similar measures to facilitate such technology transfers from the private sector
(Article 16.4). This failure is another instance of compromising the
Convention’s legally binding provisions. The Conference has adopted guidelines
for the sustainable use of biodiversity, biodiversity-related tourism and
environmental impact assessment of development projects on the territories of
indigenous peoples. Traditional knowledge was another key issue addressed by the
meeting.
Changing
Sides?
The
West has never been comfortable with CBD’s recognition of national sovereign
rights over biodiversity. In a panel discussion organized by the United Nations
University and CBD Secretariat on the sidelines of the CoP, I was surprised to
hear Vincent Sanchez, the former Chilean Ambassador who had fairly effectively
chaired the negotiation to formulate the Convention, expressing discomfort with
the sovereignty provision. Supporting the natural argument of an American
delegate on the subject, he observed that the sovereignty issue had ‘suddenly
cropped up’ in the formative negotiations on the Convention.
One
wonders as to when it was that the resources, and for that matter anything else,
within the territory of a nation were regarded as a global resource, that is, in
a post-colonial world. The remark was suitably answered by Ambassador Ting Wen
Lian, the ‘dragon lady’ of Malaysia who had been the vanguard of the South
in the Convention formulation negotiations.
What
Constitutes a Global Resource?
|
|
|
Countries have soveriegnty over biodiversity held within their territories
|
At
least for some, the global resource argument has been the result of confusing
biodiversity with the subject of a prolonged debate within the Food and
Agriculture Organization (FAO) parlance. The subject there was the genetic
resources appropriated from the South and held in the seed/gene banks of the
North. Within the FAO forums, the South took the lenient position of regarding
these translocated genetic resources as a global resource, while the North
opposed access for the South to these resources. These resources remain
untouchable to CBD too by having denied retrospective effects of the CBD
(Article 15.3). However, the Nairobi Final Act that adopted the final text of
CBD had regarded the issue of access to pre-CBD ex situ collections as an
outstanding matter and hence called on the FAO system to address this issue
(Resolution 3). But the subject of CBD’s sovereignty provision is the opposite
and simple: a country’s own biodiversity held within its territory.
Unbalanced
Representation
The
indigenous communities have come a long way in playing a significant role in the
CBD process. They have turned out in fairly good numbers and were reasonably
well organized. However, I was disappointed to see a small segment of indigenous
groups being influenced by fund-wielding Western agencies in shaping their
positions. India has the largest population of indigenous people (whom the
minority ruling castes refuse to recognize as indigenous) yet there was none to
represent them at the CoP.
Several
affluent Western NGOs are listed as collaborators in implementing the protected
areas program. This is obviously an arbitrary listing and may set an unpleasant
precedent. In actual fact these NGOs, though they operate on the international
scale on the strength of their funds, do not have an open membership, democratic
election of leadership or adequate representation of Southern citizens in their
governance structures. I just hope that such arbitrary recognition of NGOs would
not set a precedent.
What
Shall We Do With the US?
Emil
Salim, the Indonesian statesman who chaired the UN preparatory meeting for the
Johannesburg Summit, asked his colleagues on the podium in desperation at the
adjournment of an inconclusive session during the critical final meeting of the
committee, “What shall we do with the US?” (The saintly Salim had forgotten
to switch his microphone off and the next day NGO representatives appeared at
the meeting venue wearing T-shirts printed with the quote).
How
could CBD achieve the 2010 target of substantially reducing the loss of
biodiversity without bringing the country with the largest number of endangered
reptilian, amphibian and fish species in the world into its ambit? Nobody has
raised the issue of bringing the US to accede to the Convention, not even the
Ministerial Declaration, which has called on all countries to accede to the
Biosafety Protocol. It may not be entirely that delegates were happy not having
the intimidating voice of the US in the negotiation halls. US can be brought
into the fold of the treaty only if a forthcoming CoP decides not to provide
access to biodiversity for non-Parties.
CBD
is a fair international legal mechanism available for the sustainable management
of biodiversity, but its implementation would depend on the strength that the
South could gather in the future negotiations, without forgetting their own
responsibilities.
S.
Faizi is an ecologist
specializing in international environmental policy based in Thiruvananthapuram,
India. You can contact him at: ecology@zajil.net
