D.

The Convention on Biological Diversity

1. Negotiation and Entry into Force
25 The CBD was prepared under the auspices of the → United Nations Environment Programme
(UNEP). In 1988 UNEP convened an Ad Hoc Working Group of Experts on Biological
Diversity to explore the need for a convention on biological diversity that went further then
contemporary attempts to halt the alarming rate of species extinction and ecosystem loss. In
May 1989 the Ad Hoc Working Group of Technical and Legal Experts, which was later
known as the Intergovernmental Negotiating Committee, started preparing a draft convention
on the conservation and sustainable use of biodiversity. Certain elements of the agreement
can be traced back to documents of the Stockholm Conference in 1972 and to the ambitious
drafts for a convention prepared by the International Union for Conservation of Nature and
Natural Resources (‘IUCN’, now World Conservation Union) which also found its way into
the so-called Brundtland-Report (Report of the World Commission on Environment and
Development ‘Our Common Future’ (4 August 1987) UN Doc A/43/427 Annex).
26 The text of the CBD was adopted on 22 May 1992 at the Conference for the Adoption of the
Agreed Text of the Convention on Biological Diversity in Nairobi and opened for signature at
the UN Conference on Environment and Development, the so-called Earth Summit, on 5 June
1992 where 153 States signed the agreement. It entered into force on 29 December 1993, 90
days after the deposit of the 30th instrument of ratification in accordance with Art. 39 CBD
(see also → Treaties, Conclusion and Entry into Force).
27 The CBD can be classified as a framework agreement (→ Framework Agreements), although,
unlike the UN Framework Convention on Climate Change (1992), it does not bear any
reference to this characteristic in its title. So far one protocol has been negotiated under the
roof of the CBD: the Cartagena Protocol on Biosafety (→ Biological Safety; → Genetically
Modified Organisms). Other thematic areas such as forest biodiversity, biodiversity and
agriculture, or marine biological diversity—and in this context, particularly, marine genetic
resources—have been identified as important issues and have been addressed by different
decisions and working programmes but have not led to the negotiation of further protocols.
2. Scope and Objectives
28 The CBD is designed to address all aspects of biological diversity encompassed by the
definition stated above in paragraph 1. According to Art. 4 (a) CBD the operational
provisions of the agreement apply to those components of biodiversity located in areas under
national jurisdiction. Biological diversity in areas outside national jurisdiction is not directly
addressed. However, according to Art. 4 (b) CBD parties are obliged to comply with the
convention with regard to processes and activities carried out under their jurisdiction or
control. Since this provision applies regardless of where the effect of the said activities occur
and explicitly mentions areas beyond the limits of national jurisdiction, the scope of the
agreement indirectly extends to cover all biological diversity.
29 According to Art. 1 CBD the objectives of the agreement

are the conservation of biological diversity, the sustainable use of its components and the fair
and equitable sharing of the benefits arising out of the utilization of genetic resources,
including by appropriate access to genetic resources and by appropriate transfer of relevant
 technologies […] and by appropriate funding.

The main concept that distinguishes the convention from earlier approaches is the duality of
conservation and sustainable use. The convention is the first agreement which is based upon
this duality throughout all its operational elements. References to eg a ‘wise use’ as known by
the Ramsar Convention did not have the same implications for the general approach of the
relevant treaty.
30 Both elements, conservation and sustainable use, are closely connected and together form the
leading principle guiding all further provisions of the CBD. Hence, all the parties’ operative
duties under the treaty are determined by this dual objective. The underlying considerations
for an explicit incorporation of both conservation and sustainable use is not only the potential
for incentives to better protect biodiversity but refers back to the common concern of
humankind calling for preservation on the one hand and national sovereign rights over
biological resources allowing for utilization on the other.
31 The CBD does not define the term ‘conservation’. It must be presumed that the term follows
the narrow concept of conservation agreements of the 1970s in order to prevent any
destructive implications by humans. The term ‘sustainable use’ is defined in Art. 2 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 maintaining its potential to meet the needs
and aspirations of present and future generations’.
32 The conservation approach preferred by the convention is the one in-situ (Art. 8 CBD). Art. 9
CBD provides that States Parties shall adopt measures for ex-situ conservation
‘predominantly for the purpose of complementing in-situ measures’. The conservation in-situ
primarily promotes protected areas and the protection of all components of biological
diversity relying upon an ecosystem approach. This includes inter alia the rehabilitation of
ecosystems (Art. 8 (f) CBD) or the eradication of alien species (Art. 8 (h) CBD). Many
protected areas were established under specific conventions or international and national
programmes, eg the → World Natural Heritage sites under the Convention for the Protection
of the World Cultural and Natural Heritage or the UNESCO Biosphere Reserves (→ United
Nations Educational, Scientific and Cultural Organization (UNESCO)). It is not a necessity
that parties create new protected areas specifically under the CBD as long as they manage
existing sites and sites under other programmes according to the aims of the convention. The
specific relevance of protected areas is reflected by the establishment of an Ad Hoc Open-
ended Working Group on Protected Areas in 2004 and decisions by the Conference of the
Parties (‘COP’; see also → Conference (Meeting) of States Parties) on the issue (see Decision
IX/18 annexed to Report of the Conference of the Parties to the Convention on Biological
Diversity on the Work of its Ninth Meeting (19–30 May 2008) UN Doc
UNEP/CBD/COP/9/29, 163–71).
33 Ex-situ conservation is a complementary tool to preserve samples of biological diversity
outside their natural surroundings. Collections of elements of biological diversity in germ
plasm banks, botanical gardens, or zoos may help research on biological diversity and
potentially help the recovery of species by reintroduction into their habitats (Art. 9 (c) CBD).
While protected areas and other aspects of in-situ conservation are frequently dealt with by
the conferences to the CBD, the issue of ex-situ conservation has not been subject to any
decision so far.
34 The issue of access to genetic resources and the subsequent sharing of benefits is another
objective with considerable weight. Access to genetic resources is regulated by Art. 15 CBD.
The following articles deal with access to and transfer of technology (Art. 16 CBD; →
Technology Transfer), the exchange of information (Art. 17 CBD; see also → Access to
Information on Environmental Matters), technical and scientific information (Art. 18 CBD)
and the handling of biotechnology and the distribution of its benefits (Art. 19 CBD). Based
upon the sovereign rights over their natural resources States shall negotiate according to
national law on access to genetic resources, further developments, and a sharing of potential
benefits. Benefits may include the sharing of research results, the transfer of technologies
derived from such research, participation in biotechnological research and development
activities, or financial participation in the commercialization of products derived from genetic
material.
35 The idea behind the explicit incorporation of access and benefit-sharing into an international
agreement is the fact that many biodiversity hotspots with significant potential for genetic
material that can be used in pharmaceutical or industrial processes are located in developing
countries. A scheme on benefit-sharing is firmly based upon the concept of → sustainable
development. States shall try to find an equitable balance between the interests of the
countries of origin and those States who have the technical and technological means to
exploit such resources, and subsequently develop and use technologies stemming from
genetic material. In principle, States are obliged to facilitate access in accordance with Art. 15
(2) CBD but, if granted, access shall be on mutually agreed terms (Art. 15 (4) CBD).
36 At the fifth meeting of the COP to the CBD in 2000 the body established the Ad Hoc Open
Ended Working Group on Access and Benefit-sharing. This subsidiary organ to the
conference meets regularly to elaborate feasible schemes to deal with the complicated issue.
In 2002 the Bonn Guidelines on Access to Genetic Resources and Equitable Sharing of the
Benefits Arising out of the Utilization were adopted at the sixth meeting of the COP. These
guidelines shall assist parties in their efforts to establish administrative, legislative, or policy
measures concerning access and benefit-sharing as well as with the negotiation of contractual
relations for granting access and the sharing of benefits. The working group is mandated with
the task to draft and negotiate an international regime of access to genetic resources by 2010
with the aim to establish a viable instrument to effectively implement the provisions in Art.
15 CBD and Art. 8 (j) CBD.
3. Institutional Design
37 As most modern institutionalized environmental treaties the CBD employs several organs to
further develop the agreement and to promote its implementation (→ Environmental Treaty
Bodies). The main organ is the COP which was established by Art. 23 CBD. The conference
meets regularly to review the implementation of the convention. Art. 23 CBD contains a list
with nine tasks the COP is mandated with to fulfil this function. These tasks contain inter alia
the mandate to consider and adopt protocols and further annexes, to establish subsidiary
bodies, to establish relations with the organs of other conventions and to undertake any
additional action considered beneficial to achieve the purposes of the agreement. By 2008 the
COP met for 9 ordinary meetings. One extraordinary meeting was held to adopt the Cartagena
Protocol on Biosafety (see above para. 27). While the meetings were held annually from 1994
to 1996, the COP now convenes every two years. Currently, parties have adopted a total of
more than 200 procedural and substantive decisions.
38 Art. 24 CBD establishes the secretariat (see also → International Organizations or
Institutions, Secretariats). In addition to administrative functions such as the organization of
the meetings of the COP, the secretariat inter alia co-ordinates the relationship with other
conventions and disseminates information among the parties and other stakeholders.
39 The Subsidiary Body on Scientific, Technical and Technological Advice is the only
subsidiary organ established by the convention itself (Art. 25 CBD). The complexity of
ecological interdependencies, and difficulties to keep pace with scientific and technical
developments, make scientific advice almost a necessity for comprehensive multilateral
environmental agreements. The UN Framework Convention on Climate Change, for example,
has established a comparable subsidiary organ to enable the COP to make informed decisions
based upon up-to-date scientific insights. On specific questions the COP can also establish ad
hoc technical expert groups.
40 In addition to the formal subsidiary organ explicitly mentioned in the text of the convention
the COP has established a variety of further working groups on different issues: the Working
Group on the Review of Implementation, the Working Group on Access and Benefit-sharing,
the Working Group Art. 8 (j) CBD on indigenous and local communities and the Working
Group on Protected Areas.
41 As most modern multilateral agreements the CBD makes use of a financial mechanism to
transfer financial resources to developing countries (Art. 21 CBD). After an interim
arrangement with the → Global Environment Facility (GEF) in accordance with Art. 39 CBD
the COP have decided to employ the restructured GEF as the financial mechanism and
concluded a memorandum of understanding in 1996 (see also → Financial Assistance).
42 The establishment of the so-called Clearing House Mechanism serves the accessibility and
sharing of information in order to facilitate scientific and technical cooperation between the
parties. The exchange of information is viewed as an essential element of improved
implementation of the convention. To achieve this aim inter alia an electronic information
centre has been set up to grant easy access for all stakeholders.
43 While the States Parties to the CBD shall report regularly on implementation measures they
have undertaken and their effectiveness in achieving the convention's objectives (Art. 26
CBD; see also → Reporting Systems), there is no formal institutional mechanism on →
environmental compliance control or enforcement.
4. Relationship to Other Agreements
44 In the light of the great number of agreements relating to species and protected areas the
relationship between the CBD and other treaties is of particular importance in order to avoid
conflicts (see also → Treaties, Conflicts between) or the doubling of efforts and the waste of
scarce financial and other resources. To clarify the relationship with other conventions Art. 22
CBD contains an innovative conflict clause (→ Treaties, Conflict Clauses). Whereas Art. 22
(1) CBD begins with the common wording that ‘[t]he provisions under the Convention shall
not affect the rights and obligations of any Contracting Party deriving from any existing
international agreement’ the second part of the sentences establishes an exception in favour of
the protection of biological diversity. In the terms of the convention the preference of existing
treaties shall apply ‘except where the exercise of those rights and obligations would cause a
serious damage or threat to biological diversity’. This clear commitment to the objectives of
the convention in relation to other agreements is a novelty.
45 The relationship to the → law of the sea is given special attention in Art. 22 (2) CBD. Here
the CBD gives preference to the rights and obligations of States under the law of the sea. An
exception clause as established by Art. 22 (1) CBD is missing. Consequently, any acts under
the CBD must be consistent with the rights and obligations of States under the UN
Convention on the Law of the Sea (1982) and customary international law.
46 In addition to the provision on the legal relationship between the CBD and other agreements
in the treaty text, several memoranda of understanding have been concluded with the bodies
of other conventions to enhance effective cooperation. In particular collaboration with those
other treaties that concern the conservation of species and habitat, eg the Ramsar Convention
is considered essential to streamline efforts and working programmes. Concerning the
relationship between biological diversity and climate change the COP aims at the integration
of climate-change activities within the working programme of the CBD. In this context it
calls inter alia for mutually supportive programmes and collaboration of the three ‘Rio
Conventions’, ie the CBC, the UN Framework Convention on Climate Change, and the 1994
UN Convention to Combat Desertification (see Decision IX/16 annexed to the Report of the
Conference of the Parties to the Convention on Biological Diversity on the Work of its Ninth
Meeting).
5. Special Working Programmes
47 The States Parties to the CBD have agreed upon seven thematic areas considered particularly
important for conserving biological diversity: agricultural biodiversity, dry and sub-humid
land biodiversity, forest biodiversity, inland waters biodiversity, islands biodiversity, marine
and coastal biodiversity, and mountain biodiversity. The COP supervises the implementation
of working programmes for these areas. Although such working programmes are viable
approaches to develop more detailed strategies not explored in the agreement itself and to
close gaps on certain specific areas, eg marine biological diversity, the continuous increase in
the thematic workload seems questionable with regard to effective implementation and its
supervision by treaty organs.
48 In 2002, 10 years after the adoption of the instrument, the parties to the convention agreed
upon the so-called ‘2010 Biodiversity Target’. According to this target a significant reduction
of the current rate of biodiversity loss on all levels—global, regional and national—shall be
achieved. From a legal perspective this political target has only limited relevance. Non-
binding targets cannot be enforced and are not subject to compliance control (see above para.
43). However, it shall not be denied that, despite their non-binding nature, → soft-law
approaches can influence the behaviour of States. Since international policies in general
depend largely upon the will of the relevant actors to implement legal obligations and
political targets the legal nature must not be decisive for the ultimate success to achieve an
objective.
E. Perspectives and Evaluation
49 Participants at the World Summit for Sustainable Development in 2002 discussed questions
concerning the use of biodiversity intensively and made suggestions for the further
development of the CBD (see Report of the World Summit on Sustainable Development; and
Assessment of the Outcome of the World Summit on Sustainable Development as it Relates
to the Convention Process). The 2010 Biodiversity Target on a significant reduction of
biodiversity loss was endorsed by the World Summit on Sustainable Development of the
 United Nations General Assembly (→ United Nations, General Assembly). It was also
incorporated as a new target under the Millennium Development Goals (→ United Nations,
Millennium Declaration).
50 Despite a great number of agreements on nature conservation and the protection of wildlife
on a regional and global level the international protection of biological diversity is primarily
based upon the CBD. Even with all the necessary changes in conservation strategies which
are reflected by this agreement, it remains questionable whether these modifications alone can
effectively conserve biological diversity. A pessimistic outlook in the light of rapid depletion
of biological resources today may lead to the conclusion that, although the design of the
international agreement is not irrelevant and the CBD follows the most comprehensive
approach, the best multilateral legal setting is not successful if political will of the parties is
lacking or if political declarations are not followed by effective implementation on the
national level. This is particularly so for an agreement that primarily relies on national
programmes, strategies, and their implementation to achieve the treaty's objectives.
Consequently it is doubtful whether the 2010 Biodiversity Target proves a successful means
to eventually halt the rate of biodiversity loss.
51 Furthermore, despite the comprehensive character of the CBD, many issues remain open due
to lack of political consensus. The international protection of biological diversity cannot be
separated from the issue of sustainable use and the sharing of benefits derived from
commercial utilization. Questions such as intellectual property rights (→ Intellectual
Property, International Protection) in this context are of high political relevance and have not
yet been answered in a satisfactory manner.