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B I OD I V E R S I T Y L AW AND R E GU L AT I ON
The international convention on biodiversity
Biodiversity law is the branch of law that “seeks to regulate the use, management, conservation and fair and equitable distribution of the benefits arising from the use of the components of biodiversity and ecosystems, with the aim of helping to fulfil the needs and aspirations of both present and future generations”. 127
Biodiversity is protected internationally under the Convention on Biological Diversity (CBD), the international legal instrument for “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources”. The CBD has been ratified by 196 nations 129 and entered into force in 1993. The CBD has two protocols: – The Cartagena Protocol on Biosafety 130 , which aims to ensure the safe handling, transport and use of living modified organisms resulting from modern biotechnology that may have adverse effects on biological diversity; – The Nagoya Protocol on Access and Benefit-sharing 131 , which aims at sharing the benefits arising from the utilisation of genetic resources in a fair and equitable way. The CBD’s governing body is the conference of the nation state parties that have ratified the treaty (CBD COP). The CBD COP meets every two years to review progress, set priorities and commit to work plans. CBD COP15 is scheduled to take place in Kunming, China in April/ May 2022. COP15 is expected to adopt the Post-2020 Global Biodiversity Framework 132 under the Kunming Declaration, 133 which was drafted during the first, virtual phase of COP15 in 2021. 129 Convention on Biological Diversity, key international instrument for sustaina- ble development, United Nations. 130 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Convention on Biological Diversity. 131 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biologi- cal Diversity, Convention on Biological Diversity. 132 First Detailed Draft of the New Post-2020 Global Biodiversity Framework, Convention on Biological Diversity, 6 July 2021. 133 Kumming Declaration “Ecological Civilization: Building a Shared Future for all Life on Earth”, Convention on Biological Diversity, 13 October 2021.
The Kunming Declaration lays down a commitment to reverse biodiversity loss and bring about a new ecological civilisation, including the goal of protecting 30% of land and 30% of oceans by 2030 (the “30x30 target”). Under the CBD, parties are required to develop and submit a National Biodiversity Strategy and Action Plan (NBSAP). 134 Almost all parties (97%) have developed at least one NBSAP 135 . Law plays a fundamental role in the implementation of NBSAPs by, among other things, setting a legal basis for biodiversity policies and planning across the various sectors and levels of national governments. 136 Before 2010, legal instruments and mechanisms were not mentioned in most NBSAPs. However, since 2010, more countries have adopted legal instruments for the conservation of biodiversity and ecosystems. 137
The development of biodiversity law has taken place in phases:
BIODIVERSITY-RELATED CONVENTIONS
The CBD is just one of the many international conventions that govern biodiversity. Others include: the United Nations Framework Convention on Climate Change 138 , its Kyoto Protocol 139 and the Paris Agreement 140 ; the UNESCO Convention 141 ; the Ramsar Convention on Wetlands 142 ; the United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification 143 ; the Convention on the Conservation of Migratory Species of Wild Animals 144 ; the Convention on International Trade in Endangered Species of Wild Fauna and Flora 145 ; the International Treaty on Plant Genetic Resources for Food and Agriculture 146 ; the International Whaling Convention 147 ; and the International Plant Protection Convention. 148 138 United Nations Framework Convention on Climate Change, United Nations, 1992. 139 Kyoto Protocol to the United Nations Framework Convention on Climate Change, United Nations, 1998. 140 Paris Agreement, United Nations Framework Convention on Climate Change, 13 December 2015. 141 Convention Concerning the Protection of the World Cultural and Natural Heritage, UNESCO, 16 November 1972. 142 Convention onWetlands of International Importance especially as Waterfowl Habitat, UNESCO, 13 July 1994. 143 United Nations Convention to Combat Desertification, United Nations, 1994. 144 Convention on the Conservation of Migratory Species of Wild Animals, United Nations, 6 November 1979 145 Convention on International Trade in Endangered Species of Wild Fauna and Flora, IUCN, 1975 146 International Treaty on Plant Genetic Resources for Food and Agriculture, Food and Agriculture Organisation of the UN, 2009. 147 International Convention for the Regulation of Whaling, 1946. 148 International Plant Protection Convention, 1997.
Phase 1 (1972 – 1982): biodiversity law emerged as a tool to halt, control and prevent the degradation of biodiversity. Legislation focused on preservation of species. Phase 2 (1982 – 1992): biodiversity law embraced more general conservation of biodiversity by harmonising species preservation with habitat conservation. Phase 3 (1992 - current): biodiversity law is situation within sustainable development; the interdependences between human development and biodiversity are recognised. 128 Reflecting its development, biodiversity law consists of a broad range of international, national and local laws, some protecting a single species, some creating legally enforceable, time-sensitive and transnational conservation targets.
134 National Biodiversity Strategies and Action Plans (NBSAPs), Convention on Biological Diversity. 135 Law and National Biodiversity Strategies and Action Plans, United Nations Environment, 2018.
127 Law and National Biodiversity Strategies and Action Plans, United Nations Environment Programme, 2018. 128 Ibid.
136 Ibid. 137 Ibid.
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