1992 Biodiversity Convention, Sustainability & Indigenous Knowledge

1/4 There are really three kinds of problems with biodiversity, two of which in the US context arguably grow out of our failure reaching back to the 1992 Rio Conference to join the Convention on Biological Diversity (“CBD,” which alongside the UN Convention on Climate Change or “UNCCC” constituted one of the Rio Conference’s major outputs). The third was visible in Dr. Mahatir’s speech we read early in the course. It reaches all the way back to 1960s international law discussions accompanying decolonization.

The first problem is the underappreciated fact that everyone has heard about climate change, and everyone focuses on the UNCCC with its Kyoto Protocol versus Paris Agreement fireworks (accompanied by those IPCC periodic assessments). But from the natural science point of view, we are actually experiencing two simultaneous and only somewhat related environmental crises. One is the climate change issue in terms of potential longer-term temperature and weather changes with attendant sea-level rise, etc. The other is the loss of biological diversity (species extinction), typically as a result of habitat loss, in terms of changes that may result from variable temperatures, rising sea-levels, ocean acidification, human-induced changes in the natural landscape, etc.

To the extent rising heat levels or perhaps ocean acidification leads to land or sea-based habitat changes, you can draw a fairly direct line between GHG-induced climate change and biodiversity loss. But clearing tropical forest land as in Brazil or SE Asia in favor of livestock in Brazil or perhaps CPO plantations in SE Asia, may also result in habitat loss with related species loss, and so loss of biodiversity. That casts biodiversity often as a kind of overgrown land use question. It sometimes looks like a climate change question in terms of eliminating large swaths of (typically tropical) forest and their carbon sink function. But in a broader sense, it relates more to land use and economic pressures, either in terms of growing populations wanting to improve their diets (how do you feel about mandating soy burgers, given animal protein’s carbon footprint– particularly beef’s carbon footprint in the Amazon River Basin?), or perhaps the increasing number of people expanding settled areas. Arable land is being lost on the urban-rural boundary area to suburbs, etc., so farming and ranching may expand in other, more rural areas, simply to replace lost arable land. But expanding arable land with its related habitat loss typically reduces biodiversity.

2/4 The second problem is related to the US failure to join the CBD, namely that most discussion of the CBD tends to be highly technical in collateral areas, such as discussing intellectual property problems in gray areas like the overlap between the WTO’s TRIPs IP system and the CBD’s articulation of inchoate rights in the genetic material of species’ genes (e.g., incorporating royalty-like payments payable to governments for products based upon, or developed from, a harvested organism from a specific country, simply because the organism originates in that country).

The debate around traditional knowledge versus TRIPs is part of this complex of issues. The basic conflict is that traditional knowledge among pre-literate indigenous peoples does not have any real place in TRIPs, which focuses on things like patent law registries for validity searches. There is a similar problem with geographic indications (e.g., “champagne” can only come from the Champagne region of France, while the Napa Valley only produces “sparkling wine”). But from an economic point of view, geographic indications may make a substantial contribution in areas like rural development So developing countries like Brazil may want to expand geographic indications to encompass new products like single origin coffees, meanwhile Maxwell House and the US may not be very excited at the prospect of any such expansion of geographic indications (think Kraft and Kraft cheddar cheese, bearing in mind that Cheddar is actually a town in the UK).

The US may also regard any recognition of inchoate rights under the CBD as ideologically inspired, or otherwise improper, meanwhile developing countries played upon it employing concepts like “bio-piracy,” making professional operations difficult in the life sciences. Similarly, GMOs were subjected to strict regulation in the CBD’s Cartegena Protocol, seemingly in contrast to the Beef Hormones case outcome in the WTO. So the issues behind the CBD have not diminished, even though the US remains outside the CBD after 20+ years. And it remains difficult to address biodiversity-related issues generally without being a party to the chief international agreement addressing the area. What is most striking in international environmental law terms about the biodiversity issue is how underdeveloped it seems, compared to the climate change issue.

You were exposed to the relatively well-known Intergovernmental Panel on Climate Change (“IPCC,” created in 1988), which predated the 1992 Rio Conference, in reading about climate change in Unit 11. They publish all those sobering natural science-oriented climate science reports designed to inform climate policy. Meanwhile, there is for biodiversity formally since 2012 the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (“IPBES”), except very few people focus on the IPBES. Why do you think biodiversity visibly takes second place next to climate change? After all, the CBD has been around since the 1992 Rio Conference.

3/4 The third problem is inherent in sovereignty concepts and the very basic principle going back to the 1960s that countries as sovereigns retain control over the exploitation of their own natural resources. Dr Mahatir had that in mind when he said that developed countries need to pay developing countries, if they want them to refrain from exploitation their natural resources (like turning exotic hardwoods from virgin tropical forests into Danish Modern furniture). This goes back to a 1960s discussion referred to generally as the “New International Economic Order” or NIEO, where the newly independent former colonies laid claim to control of their natural resources that were often still in the hands of private sector natural resource companies based in the former colonies’ metropolitan countries. There were overtones of economic subjugation and resistance to compensating colonial-era companies, who were often claimed to have exploited the “natives” mercilessly for an extended period of time preceding independence. Meanwhile, the black letter public international law rule is that existing private law relationships and the like would normally remain unchanged following a public law change like the national independence of a traditional colony.

4/4 So, go back to the founding documents of international environmental law like the 1972 Stockholm Declaration, and you always find somewhere a mention of individual countries’ sovereignty over exploitation of their natural resources as an article of faith. This is the ideological background to odd sounding language like “bio-piracy,” that there was a prequel in the NIEO and related discussions. The claim to sovereignty over natural resources is hardly remarkable in a legal sense, but the invocation of the claim comes with a lot of intellectual and historical baggage. The problem in practice is that while discussion and disagreement occurred in the climate change arena (meaning states continue to look for solutions, like via the Kyoto Protocol or Paris Agreement), there is mostly silence on the biodiversity side of the discussion. At best, biodiversity tends to be dealt with collaterally in conjunction with climate change related habitat loss and the like. That would be okay, except how do you feel about eventual mandatory soy burgers if biodiversity were simply off the agenda? There is seeming recognition of the biodiversity issue, but not nearly as much engagement in looking for ways to address it, as would be the case with climate change (even though states may disagree about specific measures to address climate change). But the focus on land use-type concerns moves the discussion back towards the 1960s-1970s narrative about effects of overpopulation and claimed limits to growth, etc. Is this why biodiversity apparently takes a backseat to climate change?

Copyright 2020–21 © David Linnan.