International Management of Fisheries Resources 253 The Court underlined further the importance of the reasonable use of fisheries and the obligation of states to negotiate55 an equitable solution to the problem.56 According to the Court: It is one of the advances in maritime international law, resulting from the intensification of fishing, that the former laissez-faire treatment of the living resources of the sea in the high seas has been replaced by a recognition of a duty to have due regard to the rights of other States and the needs of conservation for the benefit of all.57 According to the Court, both parties have an obligation to keep under review the fisheries resources The parties must examine together, based on scientific evidence and other information, the measures required for “the conservation and development, and equitable exploitation”58 of resources taking into account international agreements The Court concluded that the task before the parties is to conduct negotiations: on the basis that each must in good faith pay reasonable regard to the legal rights of the other bringing about an equitable apportionment of the fishing resources based on the facts of the particular situation, and having regard to the interests of other States which have established fishing rights in the area [emphasis added].59 The Court repeated its pronouncement in the North Sea Continental Shelf cases that the point is not simply of finding “an equitable solution, but an equitable solution derived from the applicable law.” The Court repeated phraseology included in the North Sea Continental Shelf cases: it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles.60 The Court’s pronouncement of equity is further elucidated by its dicta in the North Sea Continental Self cases In those cases, the Court mentioned with regard to equity: There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline Equality is to be reckoned within the same plane, and it is not such natural inequalities as these that equity could remedy.61 55 56 57 58 59 60 61 Para 65, id According to the Court, “The most appropriate method for the solution of the dispute is clearly that of negotiation Its objective should be the delimitation of the rights and interests of the Parties, the preferential rights of the coastal State on the one hand and rights of the Applicant on the other, to balance and regulate equitably questions such as those of catch limitation, share allocation” and other related issues Id Para 64, id Id Para 69, id Id See also para 85, North Sea Continental Shelf cases, (Federal Republic of Germany/Denmark; Federal Republic of Germany/the Netherlands), (Judgment), Feb 20, 1969, (1969) ICJ Reports Para 91, id 254 Fisheries Resources In other words, the Court stated that equity does not mean equality The law is not the institution that would bring conditions of equality among states It is, instead, an institution that, taking into account “natural” inequalities, attempts to even the level playing field among states That is, although the inequalities between states would continue to exist, the law provides devices that could help remedy some of the inequality But the law could not possibly place states in an abstract condition of absolute equality Recent disputes over fisheries have to with the different priorities of states parties to regional fisheries organizations A regional fisheries organization often sets the TAC within a region It then allocates the TAC among state parties Regional organizations often give state parties the right to object to the assigned quota and, thus, to engage in unilateral fishing programs Such programs have been brought before international tribunals that usually decline jurisdiction in such cases but have issued statements of caution about the importance of prudent management under situations of uncertainty In the Southern Bluefin Tuna case, for instance, Australia and New Zealand contested, before International Tribunal for the Law of the Sea (ITLOS), the lawfulness of Japan’s decision to engage in a unilateral fishing program All three countries are parties to the Convention for the Conservation of Southern Buefin Tuna62 but could not agree on a TAC Before the ITLOS proceeded on the merits, Australia and New Zealand asked the tribunal to issue provisional measures The tribunal issued provisional measures asking all parties to resort to the quotas in force before the dispute erupted The ITLOS urged the parties that, in the absence of scientific certainty, they should proceed with prudence and caution.63 But the tribunal established eventually concluded that it did not have jurisdiction to decide on the merits of the case.64 The Estai case65 involved a dispute between Canada and the European Community over the TAC established by the North Atlantic Fisheries Organization (NAFO) In 1995, the European Community disputed the quota set by the NAFO and set its own quota On March 9, 1995, the Spanish fishing vessel Estai was boarded by Canadian inspectors and charged with violating Canada’s fisheries protection laws Spain brought the issue before the ICJ, but the Court held that it had no jurisdiction to decide the case because Canada invoked a reservation clause with regard to conservation measures taken within the NAFO area Despite the lack of jurisdiction, the Court did not agree with Spain’s position that the Canadian measures did not qualify as conservation measures In the Monte Confurco case,66 Seychelles, Belize, and Panama challenged France’s seizure of their vessels in the latter’s EEZ The case involved the interpretation of article 73 of the UNCLOS that deals with enforcement of laws and regulations of coastal states in their EEZs According to article 73: The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve, and manage the living resources in the exclusive economic zone, take 62 63 May 10 1993, reprinted in 1819 UNTS 360 Southern Bluefin Tuna cases, (New Zealand v Japan; Australia v Japan), ITLOS Provisional Measures, reprinted in 38 ILM 1624 (1999) 64 Southern Bluefin Tuna Arbitral Award, Aug 24, 2000, reprinted in 39 ILM 1359 (2000) 65 Fisheries Jurisdiction Case, (Spain v Canada), (Estai Case), Dec 4, 1998, (1998) ICJ Reports 432 66 The Monte Confurco case, (Seychelles v France), (Application for Prompt Release), Dec 18, 2000, List of cases No 6, ITLOS 2000, available online at http://www.itlos.org International Management of Fisheries Resources 255 such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention Arresting vessels and their crews shall be promptly released upon the posting of reasonable bond or other security Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed The interpretation of article 73 was brought before the ITLOS based on article 292 of the UNCLOS Article 292 provides that the ITLOS has jurisdiction over cases that involve the prompt release of vessels and crews detained by a party to the UNCLOS – on the posting of a reasonable bond or other financial security The plaintiff states in this case did not challenge the enforcement authority of the coastal state They questioned, however, the extent of that authority in terms of imposing reasonable sanctions Seychelles did not contest the enforcement authority of France in terms of article 73(1) but asked the tribunal to declare that France had violated: • article 73(4) with regard to giving notice to the flag state; • article 73(3) by engaging in the unlawful detention of the master of the vessel; and • article 73(2) with regard to the posting of “reasonable” bond According to Seychelles, the bond requested by France was not reasonable.67 The tribunal declared the claims of Seychelles not admissible with regard to articles 73(3) and 73(4) because article 292(1) does not explicitly provide for the tribunal’s jurisdiction over the implementation of these articles.68 With regard to the posting of a reasonable bond, the tribunal revisited its decision in the Camouco case and declared the bond demanded by France unreasonable More specifically, in the Camouco case,69 the ITLOS had held that a number of factors are relevant in the assessment of the reasonableness of bonds and other financial security Such factors include: the gravity of the alleged offense, the penalties imposed under the circumstances by the law of the detaining state, the value of the detained vessel and of the cargo seized, and the amount and form of the bond imposed by the detaining state These factors, though, the tribunal held, are not exclusive and their function is to complement rather than replace the criterion of reasonableness.70 The 67 68 69 Paras 3–6, id Paras 61–63, id The Camouco case involved a dispute between Panama and France along the same lines as the Monte Confurco case For the discussion of reasonableness of bond, see paras 64–68 of the Camouco case In the Camouco case, the tribunal reduced the amount of bond from 20 million FF to million FF See Camouco case, (Panama v France), (Application for Prompt Release), Feb 7, 2000, List of cases No 5, ITLOS 2000, available online at http://www.itlos.org 70 Para 76, Monte Confurco case, supra note 66 256 Fisheries Resources tribunal stated that it did not intend to establish rigid rules and the exact weight to be attached to each of these factors France, to strengthen its claims, asked the tribunal to take into account the general context of unlawful fishing in the region According to France, the illegal fishing in the region was a threat to resources and violated the measures taken by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) for the conservation of the Patagonian toothfish.71 The tribunal referred to the French law,72 the value of the vessel,73 and the value of the cargo and fishing gear The tribunal noted that the parties did not dispute the value of the cargo, which was estimated at 9,000,000 FF (158 tonnes of toothfish).74 The tribunal relied on the presumption that all fish found on board of the vessel was fished in the EEZ of France, taking into account, therefore, the factual circumstances of the case as requested by France.75 The tribunal concluded that the bond of 56.4 million FF imposed by France was unreasonable and reduced the amount of the bond to 18 million FF (9 million FF in cargo value already held by the French authorities and million FF in the form of a bank guarantee).76 The Grand Prince case77 involved the seizure of a Belize vessel by French authorities The case had to with illegal fishing of Patagonian toothfish in the EEZ of France, which prompted France to detain the vessel Belize requested the prompt release of the vessel based on the posting of a reasonable bond The case is of particular interest because the tribunal did not decide on the merits of the case The tribunal declined jurisdiction based on the fact that Belize had not proven adequately that it was the flag state of the vessel detained by French authorities The tribunal based its decision on article 292(2) of the UNCLOS that the application for the prompt release of a vessel may be made “only by or on behalf of the flag state of the vessel.” By declaring that it did not have jurisdiction over the case, the tribunal, in effect, denied Belize the possibility to protect the vessel that now, with no nationality, was left at the mercy of the French authorities Some commentators have deplored the tribunal’s decision as introducing uncertainty in maritime law If Belize was willing to assume responsibility as the flag state, the argument goes, the tribunal should not have engaged in exploration of whether this was actually the case The parties wanted the tribunal to decide the case and the tribunal, instead, based on technicalities, decided to deny to adjudicate the case.78 The decision has been applauded by environmental groups, however, as it strikes a blow to FOC states that fail not only to supervise the vessels that use their flag but also to register such vessels properly.79 The tribunal’s refusal to 71 72 73 74 75 76 77 Para 79, id Para 83, id Para 84, id Paras 85–88, id Id Para 93, id The Grand Prince Case, (Belize v France), (Application for Prompt Release), April 20, 2001, List of Cases No 8, ITLOS 2001, available online at http://www.itlos.org 78 Ted L McDorman, Case note: The Grand Prince (Belize v France), (2001) International Fisheries Bulletin, No 15 79 Id International Management of Fisheries Resources 257 adjudicate the case legitimized, in effect, the enforcement authority of the coastal state The Volga case80 is yet another case brought before the ILTOS regarding the illegal exploitation of the Patagonian toothfish The case was brought by the Russian Federation against Australia for the release of the vessel Volga and three members of its crew that were caught fishing illegally in the EEZ of Australia Australia emphasized that “continuing illegal fishing in the area covered by the Convention for the Conservation of Antarctic Marine Living Resources (“CCAMLR”) has resulted in a serious depletion of the stocks of Patagonian toothfish and is a matter of international concern.”81 Australia invited the tribunal to take into account the serious problem of continuing illegal fishing in the Southern Ocean and the dangers this poses to the conservation of fisheries resources and the maintenance of the ecological balance of the environment.82 The tribunal shared the concerns of Australia about illegal, unregulated, and unreported fishing, and appreciated the measures taken by states to deal with the problem.83 However, the tribunal insisted that, in this case, the issue that it had to decide had to with the reasonableness of the bond requested based on articles 292 and 73(2) of the UNCLOS.84 In rendering its decision, the tribunal revisited its judgment in the Monte Confurco case According to that judgment, the reasonableness of the bond for the release of a vessel is not based solely on the mechanical application of rigid criteria Certain criteria, however, such as: the gravity of the alleged offenses, the penalties imposed under the laws of the detaining state, the value of the detained vessel and cargo seized, are some of the factors to be taken into account in determining the reasonableness of bond requested by the detaining state.85 Australia had requested AU$1,920,000 for the release of the vessel, which reflected the full value of the vessel, fuel, lubricants, and fishing equipment This was not disputed by Russia.86 The tribunal, however, observed that Australia made the release of the vessel conditional on the installation of a Vessel Monitoring System (VMS) and a request that information about the ship owners be submitted to the Australian authorities.87 The tribunal concluded that these additional nonfinancial conditions could not justifiably be considered as part of the bond The tribunal determined that the bond for the release of the vessel should be set at the amount of AU$1.92 million, an amount to which both parties had agreed before, and that no additional nonfinancial conditions should inhibit the prompt release of the vessel.88 80 81 82 83 84 85 86 87 88 The Volga Case, (Russian Federation v Australia), (Application for Prompt Release), Dec 23, 2002, List of Cases No 11, ITLOS 2002, available online at http://www.itlos.org Para 67, id Id Para 68, id Para 69, id Paras 63–64, id Para 67, id Para 75, id Para 90, id 258 Fisheries Resources The exploitation of the swordfish in the South Pacific was brought both before the ITLOS and the WTO Dispute Settlement Body The exploitation of the swordfish by the EU in the waters adjacent to the EEZ of Chile had prompted claims by Chile that the EU had failed to respect the UNCLOS The UNCLOS called for cooperation between coastal states and other states (e.g., distant water fishing states) for the conservation of fish stocks (article 64 of the UNCLOS).89 Because of the failure of the EU to cooperate, Chile prohibited the unloading of swordfish in its ports, thereby creating logistical problems for the EU The EU uses Chilean ports for its exports of swordfish to NAFTA countries and, particularly, to the United States The EU brought the import prohibition before the WTO Dispute Settlement Body on the grounds that the Chilean import prohibition violated articles V (freedom of transit for goods) and XI (quantitative restrictions on imports and exports) of the GATT.90 Chile brought the case before the ITLOS Chile asked the ITLOS to declare that the EU had failed to fulfill its obligations under article 64 of the UNCLOS Chile claimed that the EU was in violation of articles 116–119 (conservation of living marine resources of the high seas), article 297 (dispute settlement) and article 300 (underlining the importance of good faith and no abuse of rights).91 The EU based its claims before the ITLOS on article 87, that has to with the freedom of high seas, and article 89 that prohibits any state from asserting its sovereignty over the high seas The EU contended that Chile had imposed unilaterally its EEZ conservation requirements on the high seas.92 Eventually, the parties decided to suspend the proceedings before the ITLOS and the WTO They agreed to establish a bilateral technical commission, port access for fish captured under a new scientific fisheries program, and the creation of a multilateral conservation forum for the South East Pacific.93 3.3 International Instruments 3.3.1 Agreement on Fisheries Management General Provisions The management of straddling fish stocks (stocks that straddle the EEZ and the high seas) and highly migratory fish stocks is a constant source of irritation between coastal states and distant water fishing states An agreement was adopted in 1995 to elucidate further the appropriate management of these stocks.94 89 90 91 92 93 94 Marcos Orellana, The EU and Chile Suspend the Swordfish Case Proceedings at the WTO and the International Tribunal of the Law of the Sea, American Society of International Law Insights, Feb 2001 Id Id Chile had negotiated the Calapagos Agreement under the auspices of the Commission of the South Pacific without attempting to include all interested states Id Id Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Dec 4, 1995, reprinted in 34 ILM 1542 (1995) [hereinafter 1995 Fisheries Agreement] International Management of Fisheries Resources 259 The agreement, by definition, applies to areas that are outside national jurisdiction.95 The agreement emphasizes the precautionary approach,96 which is viewed as a weaker version of the precautionary principle, but also the importance of scientific evidence.97 The agreement refers to all the issues that have plagued the management of fisheries resources, such as pollution, waste, discards, lost or abandoned gear, and catches of nontargeted species The goal of the agreement is to minimize such issues so that they not have adverse impacts on the management of fisheries resources.98 The agreement urges states to collect data regarding fishing activities99 and to promote the conduct of scientific research so as to support fisheries conservation and management.100 The agreement mandates that regional organizations are to take measures with regard to fisheries And, in a manner more obligatory than the UNCLOS, it provides that, with regard to highly migratory fish stocks, state cooperation is mandatory,101 whereas, for straddling fish stocks, state cooperation is desirable.102 Article of the agreement is devoted to the issue of compatibility between conservation and management measures established in the high seas and those adopted for areas under national jurisdiction For states to determine the compatibility between measures taken in the high seas and those adopted in areas under national jurisdiction, a number of factors have to be taken into account: the effectiveness of measures undertaken by coastal states in accordance with article 61 of the UNCLOS103 must not be undermined by measures taken in the high seas; previously agreed, UNCLOS-compatible measures established in the high seas for the same stock by coastal states and states fishing in the high seas; previously agreed, UNCLOS-compatible measures for the same stock adopted by regional fisheries arrangements; the biological unity of stocks, the distribution of stocks, and the geographical particularities of the region including the extent to which stocks are found and fished within areas under national jurisdiction; and the respective dependence of coastal states and distant water fishing states on stocks.104 States must ensure that measures not result in harmful impacts on living marine resources as a whole.105 95 96 97 98 99 100 101 102 103 104 105 Art 3(1), id Arts 5(c) & 6, id Art 5(b), id Art 5(f ), id Art 5( j), id Arts 5(k) & 14, id Art 7(1)(b), id According to the article states “shall cooperate with a view to ensuring conservation ” Art 7(1)(a), id According to the article states “shall seek to agree upon the measures necessary for the conservation ” Article 61 of the UNCLOS provides that a coastal state must determine the allowable catch of living resources in its EEZ based on the best scientific evidence and the attainment of the maximum sustainable yield See UNCLOS, supra note 39 Art 7(2)(a)–(e), 1995 Fisheries Agreement, supra note 94 See also art 11(d)–(e), id See also article 24 on the recognition of special requirements for developing states Art 7(2)(f ), id 260 Fisheries Resources The criteria, thus, that the convention proposes to be used in order to determine the compatibility between measures taken under national jurisdiction and those proposed for the high seas not dictate the exact nature of these measures It has been proposed, therefore, that equity considerations – as defined in the Fisheries Jurisdiction cases and the North Sea Continental Shelf cases – should be applied in balancing the criteria provided for in article 7(2).106 If states cannot reach consensus within a reasonable period of time, they can invoke the procedures for dispute settlement.107 Pending a final agreement on conservation and management measures, state parties may adopt provisional measures of practical nature If the adoption of such provisional measures is not feasible, the dispute settlement provisions can be used.108 The convention does not provide much guidance on the considerations that parties must take into account in order to adopt provisional measures.109 Who should participate in a regional management organization is not, in principle, contested The agreement provides that coastal states and states fishing in the high seas must pursue cooperation in relation to straddling fish stocks and highly migratory fish stocks either directly or through regional or subregional fisheries management organizations or arrangements In doing so, they must take into consideration the specific characteristics of the region or subregion.110 Pending the conclusion of regional fisheries arrangements, states must observe the provisions of the 1995 Fisheries Agreement and must act in good faith with regard to the rights, interests, and duties of other states All states with a real interest in a fishery could enter into an already existing RFO or establish a new RFO.111 Commentators have interpreted this clause to mean that states that actually conduct fishing operations in a region may possibly enter an RFO.112 It has been claimed that the agreement is drafted in a way that participation in a regional organization becomes the prerequisite for fishing in a region beyond areas of national jurisdiction.113 The agreement provides that only states that are parties to a regional fisheries organization, or agree to apply conservation and management measures prescribed by such an organization, shall have access to fisheries resources regulated by that organization.114 If a regional organization is not in place, coastal states and distant water fishing states are to cooperate to establish such an organization.115 106 107 108 109 110 111 112 113 114 115 Alex G Oude Elferink, The Impact of Article 7(2) of the Fish Stocks Agreement on the Formulation of Conservation & Management Measures for Straddling & Highly Migratory Fish Stocks, FAO Legal Papers Online #4, Aug 1999 available online at http://www.fao.org/Legal/prs-ol/full.htm Art 7(4), 1995 Fisheries Agreement, supra note 94 Art 7(5), id See art 7(6) which provides that “provisional arrangements shall take into account the provisions of this Part, shall have due regard to the rights and obligations of all States concerned, shall not jeopardize or hamper the reaching of final agreement on compatible conservation and management measures and shall be without prejudice to the final outcome of any dispute settlement procedure.” Id Art 8(1), id Art 8(3), id Vicu˜ a, supra note 41, at 207 n Id at 209 Art 8(4), 1995 Fisheries Agreement, supra note 94 Art 8(5), id International Management of Fisheries Resources 261 The agreement provides for the elements that are necessary to establish a regional fisheries organization (i.e., the definition of the fisheries concerned, the area of application, and the establishment of a scientific advisory body).116 The agreement enumerates the functions that are to be fulfilled by regional and subregional organizations (i.e., conservation measures, TACs, data collection, scientific advice).117 The parameters of accommodation of new entrants are further defined in the agreement In determining the extent of rights of new entrants, regional organizations must take into account: • the status of stocks and the existing fishing effort; • the fishing patterns, practices, and interests of participants; • the contributions of new and old members in the management and conservation of stocks; • the needs of coastal fishing communities that are dependent mainly on fishing; • the needs of coastal states that are “overwhelmingly” dependent on the exploitation of marine living resources; and • and the interests of developing countries in whose national jurisdiction fisheries stocks also occur.118 Three out of these six factors have to with the needs of developing states or fisheries-dependent regions (needs of coastal fishing communities dependent on fishing; needs of coastal states overwhelmingly dependent on fishing; interests of developing states) The preferential treatment given to states and regions dependent on fisheries, also underscored in many regional agreements, suggests a needs-based orientation in the allocation of fisheries resources The 1995 Fisheries Agreement provides that NGOs must be given the opportunity to participate in regional and subregional organizations, as observers119 addressing current demands for transparency in international organizations Further details are provided for the collection of information and cooperation in scientific research.120 Article 15 provides for implementation of the agreement in enclosed and semienclosed areas Enforcement The agreement is clear that states that are not parties to regional fisheries organizations are not discharged from the obligation to cooperate in the conservation and management of relevant fish stocks.121 Furthermore, states that are members of regional and subregional organizations must take measures – consistent with the 1995 agreement and international law – to deter activities of vessels that undermine the effectiveness of regional and subregional arrangements.122 It is a well-known rule of international law that flag states have jurisdiction over vessels that carry their flags An explicit exception to this general rule is found 116 117 118 119 120 121 122 Art 9, id Art 10, id Art 11, id Art 12(2), id Art 14, id Art 17(1), id Art 17(4), id 262 Fisheries Resources in article 111 of the UNCLOS Article 111 provides that coastal states can always undertake the hot pursuit of a vessel in the high seas that committed a violation in their jurisdictional area The 1995 agreement does not nullify flag state jurisdiction On the contrary, it strengthens such jurisdiction by providing detailed requirements for the obligations of flag states to enforce regional management rules on their vessels.123 However, because of problems presented by the flagging and reflagging of vessels and the perennial issues with flags of convenience, the agreement broadens the jurisdictional reach of state parties to regional organizations State parties to a regional management organization are empowered to take action (that is, board and inspect a vessel) when flag states are unwilling or unable to assert their jurisdiction What is even more empowering is that vessels can be boarded and inspected by members of a regional fisheries organization even if the flag state under question is not a member of the fisheries organization The caveat is that both the inspecting state (member of the regional organization) and the flag state (either a member or nonmember of the regional organization) have to be parties to the 1995 agreement.124 The agreement provides detailed provisions regarding the inspection and boarding of vessels by states parties to regional organizations in case of a serious violation,125 including unauthorized fishing in areas under national jurisdiction126 and fishing by vessels of no nationality.127 It is provided, inter alia, that inspecting states, when boarding a vessel, must respect the regulations for the safety of the vessel and the crew, minimize interference with fishing operations, and avoid the use of force (except in cases of self-defense).128 The inspecting state, however, may not be able to finalize its inspection if the flag state exercises its peremptory right to take over the inspection.129 For a flag state to take over an inspection, it must be notified by the inspecting state The flag state must respond to the notification within three working days after its receipt or in accordance with the requirements of the specific regional organization If the flag state decides to fulfill its obligation to enforce the regional agreement, the inspecting state must release the vessel to the flag state.130 The lack of response by the flag state to the notification of the inspecting state triggers the enforcement responsibilities of the inspecting state The inspecting state can authorize its enforcement personnel to remain on board to secure evidence and may require the ship’s master to bring the vessel to the nearest appropriate port so 123 124 125 126 127 128 129 130 Arts 18 & 19, id These articles provide that flag states must ensure the compliance of their vessels with regard to regional and subregional rules for fisheries management A flag state can enforce such rules through investigation and prosecution, including the physical inspection of vessels The vessel is required to give information regarding its fishing gear, fishing operations, and related activities The flag state must impose sanctions, if needed, and such sanctions must be stringent enough to deter future illegal behavior Art 21(1), id Art 21(11), id Art 21(14) id Art 21(17), id Arts 21 & 22, id Art 21(5), id Art 21(12)–(13), id 292 Biodiversity that conservation instruments should be linked to human rights instruments Biodiversity conservation should not take place through the violations of human rights of people that live in protected areas no matter the conservation interest at stake.28 Comanagement Comanagement of a protected area between the government and the local communities has been proposed as a method to overcome monitoring and enforcement problems in protected areas.29 The strict nature reserve model is far from acceptable in the developing world because of the large numbers of landless people.30 Reserves that are inadequately monitored are constantly infiltrated by local people who view them as arbitrary violations of their natural rights to forests Even under a modern approach to nature reserves that attempts to exclude humans only from core reserve areas,31 local people remain dissatisfied The biosphere reserves proposed by the United Nations Educational, Scientific, and Cultural Organization (UNESCO) often are cited as an example of this modern approach The biosphere reserves contain a core conservation area and buffer zones in which different uses are allowed.32 The distinction between core areas and buffer zones, however, is not followed in reality Most biosphere reserves today consist of a combination of preexisting national parks with no separation between core areas and buffer zones.33 Wild animals enter buffer zones destroying crops and property.34 Core areas are often fertile and buffer zones are degraded generating demands to open core areas to use Some attribute the lack of success of comanagement schemes to their organizational structure It is argued that comanagement programs are not structured to provide answers to the problems of local people, as the international environmental interests that fund them are not ultimately accountable to local people Studies undertaken by the FAO have confirmed that the costs of conservation are borne by the people who are the least able to bear these costs, whereas the benefits are enjoyed 28 29 30 31 32 33 34 See, generally, Elli Louka, Biodiversity and Human Rights: The International Rules for the Protection of Biodiversity (2002) See Rudolf Hermes, Key Sustaining Factors to Effective Implementation of Marine Protected Areas in the Philippines, in Proceedings of the INCO-DC International Workshop on Policy Options for the Sustainable Use of Coral Reefs and Associated Ecosystems, Mombasa, Kenya, June 19–22, 2000, reprinted in ACP-EU Fisheries Research Report, No 10, at 174 (Heidi Wittmer et al., eds., 2001) [hereinafter Coral Reefs] See, e.g., R.H.V Bell, Conservation with a Human Face: Conflict and Reconciliation in African Land Use Planning, in Conservation in Africa 79, 88 (D Anderson & R Grove, eds., 1987) The modern approach to forest area management presupposes the involvement of local communities by providing incentives to maintain the reserve rather than to destroy it for the quick economic benefit The International Union for Conservation of Nature (IUCN) in a revision of protected areas added a category of “managed resource protected areas,” areas managed for the “sustainable use” of the ecosystem See IUCN, Guidelines for Protected Area Management Categories 23 (1994) For other attempts to classify protected areas, see United States National Academy of Sciences, Managing Global Genetic Resources (1991); United States Office of Technology Assessment, Technologies to Sustain Tropical Forest Resources (1994); ITTO, Guidelines on Conservation of Biological Diversity in Tropical Production Forests (ITTO Policy Development Series No 5, 1993) For a good description of a biosphere reserve, see FAO, Tropical Forest Management 41–44 (FAO paper 107, 1993) See Craig L Shafer, Nature Reserves: Island Theory and Conservation Practice 77 (1990) See, generally, R Sukumar, The Asian Elephant: Ecology and Management (1989) Biodiversity Management 293 by the wealthy nature lovers residing in developed countries.35 In most instances, the most communities can obtain from “sharing” in the benefits of resource use is access to medicinal plants, fibers, and drinking water.36 This is in exchange for undertaking the onerous task of patrolling, monitoring, and reporting illegal park behavior.37 There is often a genuine conflict of interests between conservation interests and the interests of local people.38 Such conflict defies immediate resolution and needs to be managed in a constant fashion.39 Community-Based Natural Resources Management Because of the failures of different comanagement schemes, community-based natural resources management (CBNRM) has been proposed for the management of many common pool resources, such as forests CBNRM is based on the idea that local communities will be in charge of the management of their resources An ideally functioning CBNRM system would involve:collective action defined as an action taken by a group as whole in defense of its shared interests;40 an enabling environment – that is legislation and an institutional structure in support of the devolution of power to the local community; property rights and/or user rights (access to the resource, withdrawal [e.g., rights to take fish, plants]) and control rights (including exclusion, alienation and management) Furthermore, user groups would need access to financing, skills and linkages to other groups.41 CBNRM is more appropriate for small-scale resources because its enforcement – and, thus, its success – is based largely on the ability of people to observe each other’s behavior.42 A fundamental problem with all CBNRM systems is that they are closed systems Extensive commercialization of a resource could undermine and eventually wipe out such systems Supporting such systems would make it necessary to shield them from outside commercial pressures43 – a difficult-to-meet requirement in today’s globalized world 35 36 37 38 39 40 41 42 43 Tom Blomley, Natural Resource Conflict Management: The Case of Bwindi Impenetrable and Mgahinga Gorilla National Parks, Southwestern Uganda, in FAO, Natural Resource Conflict Management Case Studies: An Analysis of Power, Participation and Protected Areas 231, 239 (A Peter Castro & Erik Nielsen, eds., 2003) Id at 240 Id at 242–44 Zvidzai Chidhakwa, Managing Conflict around Contested Natural Resources: a Case Study of Rusitu Valley Area, Chimanimani, Zimbabwe, in FAO, Natural Resource Conflict Management Case Studies: An Analysis of Power, Participation and Protected Areas 183, 200 (A Peter Castro & Erik Nielsen, eds., 2003) Sara Singleton, Cooperation or Capture? The Paradox of Co-management and Community Participation in Natural Resource Management and Environmental Policymaking, in “Conference: Property Rights: Design Lessons from Fisheries and Other Natural Resources,” 1, 4–5, International Institute of Fisheries Economies and Trade (IIFET), Oregon State University, 2000 See Ruth Meizen-Dick & Anna Knox, Collective Action, Property Rights and Devolution of Natural Resources Management: a Conceptual Framework, in “Proceedings of International Conference, Collective Action, Property Rights and Devolution of Natural Resources Management: Exchange of Knowledge and Implications for Policy” (Ruth Meinzen-Dick et al., eds., 1999) Id at 48–58 Carol Rose, Common Property, Regulatory Property, and Environmental Protection: Comparing Community-Based Management to Tradable Environmental Allowances, in The Drama of the Commons 233, 237 (National Academy of Sciences, Elinor Ostrom et al., eds., 2003) Id at 247 294 Biodiversity CBNRM systems are generally based on nonconsumptive uses of biodiversity, such as bioprospecting, extractive reserves, and small ecotourism projects A CBNRM program has been developed in Zimbabwe with mixed success Namibia also has experimented with conservancy systems that are a kind of privatization schemes for communal resources.44 Individual Transferable Quotas (ITQs), applied in fisheries management, also have been proposed for the management of wildlife in protected land areas It has been proposed that such ITQs are feasible because wildlife is a common pool resource and the differences between wildlife and other common pool resources are of degree rather than of substance.45 The application of ITQs, however, can encounter many practical difficulties, especially in countries that lack the institutions and preparedness to supervise private markets Some of advantages and pitfalls of ITQs were detailed in Chapter In general, attempts at community management encounter many problems: • unanticipated conflicts when the community in which CBNRM is attempted is not as homogenous as it was initially assumed;46 • parochial and separatist tendencies that provide more excuses for suppressive authoritarianism; • additional regulatory complexity as central governments refuse to relinquish power but, at the same time, add local regulations in support of an alleged decentralization;47 and • further dominance by local elites as decentralization efforts are often captured by such elites in weak democratic settings.48 It is expected overall that decentralization, in terms of community management, would work better if it addresses the distribution issues before it deals with the natural resource management issues Addressing distribution issues, however, as a means to resolve conservation issues has rarely occurred in practice Transnational Protected Areas A relatively new trend in international circles involves interstate agreements for the creation transboundary protected areas – what has been called Transboundary 44 45 For more details on these systems, see Louka, supra note 28, at 79–90 All common pool resources, including wildlife, share similar characteristics They are quite mobile, usually defy administrative and national frontiers and are difficult to monitor Because of these characteristics, it is difficult for individuals or communities to acquire clear property rights and to effectively exclude outsiders See Amar Inamdar et al., What’s Special About Wildlife Management in Forests?, Concepts and Models of Rights-Based Management, with Recent Evidence from West-Central Africa, Natural Perspectives, Number 44, June 1999 (issued by the Overseas Development Institute) 46 Sobona Mtisi & Alan Nicol, Water Points and Water Policies: Decentralisation and Community Management in Sangwe Communal Area, Zimbabwe 1, Sustainable Livelihoods in Southern Africa Research Paper 15, Institute of Development Studies, Brighton (2003) 47 P W Mamimine, Administration by Consensus: A Quest for Client-centered Institutional Structures for Land Administration in Zimbabwe, in Delivering Land and Securing Rural Livelihoods 365, 379, Centre for Applied Social Sciences, University of Zimbabwe & Land Tenure Center, University of Wisconsin-Madison (Michael Roth & Francis Gonese, eds., 2003) See also Elinor Ostrom, Vulnerability and Polycentric Governance Systems, Update, Newsletter of the International Human Dimensions Programme on Global Environmental Change Nr 3/2001 48 Sustainable Livelihoods in Southern Africa (SLSA Team), Decentralisation in Practice in Southern Africa 25–26, Programme for Land and Agrarian Studies, University of Western Cape, Cape Town, 2003 Biodiversity Management 295 Natural Resource Management (TBNRM) or Integrated Conservation and Development Management (ICDM) In 2000, the governments of Zimbabwe, South Africa, and Mozambique signed an agreement creating a protected area encompassing the Gonarezhou, Kruger, and Gaza national parks – a total conservation area of 99,800 square kilometers In 2001, the area was given the name Limpopo Transfrontier Park.49 At WSSD, the governments of South Africa and the United States, in cooperation with Conservation International, the World Wildlife Fund (WWF), and the Wildlife Conservation Society, announced the establishment of the Congo Basin Forest Partnership The purpose of the partnership is to alleviate poverty and protect biodiversity through a network of protected areas Assistance to local communities that depend on forests in the Central African countries, including Cameroon, the Central African Republic, Congo, Equatorial Guinea, and Gabon, is to be provided.50 Efforts to manage biodiversity across borders are not limited to terrestrial areas France, Italy, and Monaco concluded an agreement in 1999 establishing a marine mammal sanctuary in the Mediterranean.51 The agreement establishes a sanctuary for whales and dolphins in the Mediterranean Sea off the coasts of state parties This is the largest marine protected area in the Mediterranean Other transnational marine protected areas include the Indian Ocean Sanctuary and the protected area established under the Torres Strait Treaty between Australia and Papua New Guinea International agreements to protect biodiversity across national borders are hard to evaluate because of the multiplicity of goals involved The purpose of these agreements is initially to build alliances among neighboring countries that would increase regional cohesion It seems like an ideal situation, that countries cooperate to build alliances to protect forests and to alleviate the poverty of their inhabitants Such international alliances, it is believed, could help bring peace in a belligerent region As a matter of fact, the premises on which theses protected areas have been established include: • a belief in bioregionalism – that is, a conviction that ecosystems are preserved better in bigger areas than in fragmented landscapes;52 • a belief in cultural harmonization by removing artificial national boundaries and by bringing together cohesive groups; and • a presumption that peace and security would flourish through transboundary conservation areas.53 In matters of management, however, transnational conservation areas have not been all that different from national protected areas From a state perspective, TBNRM would bring better enforcement by abating illegal migration, poaching, 49 50 51 52 53 William Wolmer, Transboundary Conservation: the Politics of Ecological Integrity in the Great Limpopo Transfrontier Park 9, Sustainable Livelihoods in Southern Africa Research Paper 4, Institute of Development Studies, Brighton (2003) FAO, State of the World’s Forests 57 (2003) Agreement Concerning the Creation of a Marine Mammal Sanctuary in the Mediterranean (France, Italy, Monaco), Nov 25, 1999, available online at http://www.oceanlaw.net/texts See, e.g., C Llewellyn et al., Moving to Large-Scale Marine Conservation: Ecosystem and Global Approaches, in Coral Reefs, supra note 29, at 217 Wolmer, supra note 49, at 2–7 296 Biodiversity smuggling, and rebel activity But local people not necessarily view more enforcement as a benefit.54 Local people are apprehensive that transboundary protected areas would mean infringements on their free cross-border movements The free (often illegal) movement of people from Zimbabwe to South Africa, for instance, has been credited for the survival of many households in Zimbabwe.55 Local people are fearful that more coordinated enforcement in protected areas would mean more violations of what they see as their natural right to a resource The question of whether transnational conservation areas would bring, through the spill-over effect, free trade in a region has yet to be answered Although there have been efforts to associate the Limpopo Transnational Park with the 1992 Southern African Development Treaty and, thus, to open the area to free trade, this has not yet happened.56 Moreover, the Limpopo Park has been established with virtually no local participation (many local people are not even aware of its existence).57 Local participation has been used as a rhetorical device and genuine attempts to democratic emancipation have been resisted.58 The need to manage resources in a transnational fashion is prominent in most international and regional conventions Many treaties require state parties to consult with each other if they plan to create a protected area close to a common frontier.59 Some conventions go even further and ask parties to comanage resources that transcend national frontiers The Ramsar Strategic Plan of 1997–2000, for instance, advocates the development of transfrontier wetlands in accordance with article of the Ramsar Treaty.60 Some adjacent transnational protected areas have been declared transboundary World Heritage sites61 and the World Heritage Convention welcomes the designation of other such areas Transboundary biosphere reserves also have been proposed as a way to enhance the management of national reserves 1.3 Gene Banks National and Regional Gene Banks Gene banks were developed mainly in the 1970s and the 1980s to preserve biodiversity that would otherwise disappear The first gene banks were developed in Europe62 for the same reason that makes them now indispensable in developing 54 55 56 57 58 59 60 61 62 Anna Spencely, Tourism, Local Livelihoods and the Private Sector in South Africa: Case Studies on the Growing Role of the Private Sector in Natural Resources Management 92, Sustainable Livelihoods in Southern Africa Research Paper 8, Institute of Development Studies, Brighton (2003) Id Wolmer, supra note 49, at Spencely, supra note 54, at 93 Id at 100 See, e.g., article 13(6) of the 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources, infra Section 4.3 “Contracting Parties shall co-operate in the development of principles, objectives, criteria and guidelines for the selection, establishment and management of protected areas in the Region with a view to establishing a co-ordinated network of protected areas throughout the Region, giving particular attention to those of regional importance.” See infra Section 3.3 Clare Shine, Legal Mechanisms to Strengthen and Safeguard Transboundary Protected Areas, in Parks for Peace 37 (International Conference on Transboundary Protected Areas as a Vehicle for International Co-operation, September 1997, Conference Proceedings, Draft of Jan 30, 1998) See Ottto H Frankel et al., The Conservation of Plant Biodiversity 98 (1995) Biodiversity Management 297 countries – the scarcity of land Farmers, applying modern agricultural techniques to feed a rising population, were quick to discard traditional varieties.63 The diversity of traditional crops was in danger and needed to be preserved.64 The purpose of gene banks is to keep the seeds of traditional landraces and other varieties safe and in good condition so that they can be used for future breeding and genetic engineering Gene banks concentrate on traditional and advanced agricultural varieties and their wild relatives that are either underused or under the threat of extinction.65 Gene banks have been instrumental in the preservation of food crops When wars decimate indigenous germplasm, gene banks intervene to rehabilitate the farming sector of the war ravaged country For instance, the International Agricultural Research Centers (IARCs) have provided assistance when seeds of a variety of sorghum called zera zera was destroyed in an attack on a gene bank in Ethiopia during a political upheaval Similar assistance was provided to Nicaragua and Cambodia after periods of social disruption.66 Many gene banks have been established worldwide Worldwide holdings of crop germplasm amount to 4.4 million accessions, but the number of unique samples are likely to be smaller because many accessions are duplicated.67 Germplasm collections have been established in 130 countries, and the most unique collections are located in the IARCs.68 In order to ensure against national gene bank failure, efforts have been made to internationalize gene bank management through the IARCs Efforts also have been made to ensure against the destruction of collections Most gene banks today, to be on the safe side, save a large number of seeds to the point of creating excessive overlap and sacrificing valuable space.69 Gene banks have been instrumental in preserving food crops but not in preserving wild species This is because the value of many wild species is not known and the techniques to maintain and regenerate wild species are not very advanced Botanic gardens are geared more toward the protection of wild species The seeds kept in gene banks are the subject of controversy Some developing countries seek to repatriate these seeds, and they also attempt to control the transfer of these seeds and to avert the assertion of intellectual property rights over the modification of seeds Such efforts and their repercussions on innovation and food security are explored in detail later in this chapter IARCs The Consultative Group on International Agricultural Research (CGIAR) was established in 197170 as an informal group of private and public donors The CGIAR 63 64 65 66 67 68 69 70 Miguel A Alteri & Laura C Merrick, Agroecology and In Situ Conservation of Native Crop Diversity in the Developing World, in Biodiversity 361 (E.O Wilson, ed., 1988) See, generally, Donald L Plucknett et al., Gene Banks and the World’s Food (1987) Id at 17–18 Fred Powledge, The Food Supply’s Safety Net, 45 (No 4) Bioscience 235, April 1995; H Carrison Wilkes, Plant Genetic Resources Over Ten Thousands Years, in Seeds and Sovereignty 67, 86 ( Jack R Kloppenburg Jr., ed., 1988) Report on the State of World’s Plant Genetic Resources, CGRFA-EX2/96/2, April 22–27, 1996 Id See Plucknett, supra note 64, at 81 Before the birth of the CGIAR in 1971, the Ford and the Rockefeller foundations had already established four international agricultural research centers: the International Rice Research Institute (IRRI), the 298 Biodiversity supports the International Agricultural Research Centers (IARCs) The CGIAR is cosponsored by the FAO, the United Nations Development Program (UNDP), the UNEP, and the World Bank The CGIAR began operations with four centers, but many more centers were developed in the ensuing years.71 The centers operate from year to year because their funding is determined on an annual basis In general, the CGIAR system has worked well and the centers’ relationships with their host countries have been good.72 As mentioned earlier, the centers have played a crucial role in the preservation of food and agricultural resources Well over one hundred thousand samples of materials held in the CGIAR collections were distributed in 1990 for use worldwide.73 Some centers, including the CIMMYT, the IRRI, and the International Potato Center (CIP), focus on one commodity for which they have a global mandate Other centers have a regional or a global mandate for more than one commodity.74 Yet other centers perform specialized functions in food policy research, such as the International Food Policy Research Institute (IFPRI) and the International Service for National Agricultural Research (ISNAR) In recent years, the CGIAR has sponsored centers that work in the area of agroforestry and forestry.75 The International Plant Genetic Resources Institute (IPGRI), formerly known as International Board for Plant Genetic Resources (IBPGR), is one of the most significant policy-making centers The IBPGR was established in 1974, when the loss of valuable landraces became so widespread that it was recognized that an international network of gene banks was indispensable In the first years of its life, the IBPGR was involved in collecting germplasm from all around the world and depositing it in gene banks It also assisted in gene bank development in the third world.76 Today, the principal objective of the IPGRI is to assist the national and regional programs 71 72 73 74 75 76 Center for the Improvement of Maize and Wheat (CIMMYT), the International Institute for Tropical Agriculture (IITA), and the International Center for Tropical Agriculture (CIAT) These institutions helped create optimism about the future of the world food Except for serving as gene banks, these institutions are involved in breeding high-yield rice and wheat varieties See M S Swaminathan, Seeds and Property Rights: A View from the CGIAR System, in Seeds and Sovereignty, supra note 66, at 231–32 Selcuk Ozgediz, Governance and Management of the CGIAR Centers 139 (CGIAR Study Paper Number 27, World Bank, 1991) [hereinafter CGIAR Governance] Id at xx IPGRI, Diversity for Development: The Strategy of the International Plant Genetic Resources Institute 16 (1993) [hereinafter IPGRI Strategy] For example, the International Center for Tropical Agriculture (CIAT), the International Center for Agricultural Research in Dry Areas (ICARDA), the International Institute for Tropical Agriculture (IITA), the International Crops Research Institute for the Semi-Arid Tropics (ICRISAT), and the International Livestock Research Institute (ILRI) International Center for Research in Agroforestry based in Kenya (ICRAF) and the Center for International Forestry Research based in Indonesia (CIFOR) In the first decade of its life the IPGRI focused on collecting threatened germplasm and facilitating longterm conservation in the base collections maintained by forty international and national gene banks By the year 1991, almost two hundred thousand samples had been collected by missions sponsored by the IBPGR An important contribution of the IPGRI is the introduction of a standardized system for characterizing germplasm This system has been adopted by institutions all over the world See IPGRI Strategy, supra note 73, at International Instruments 299 of developing countries Another objective is to build crop and regional networks.77 The IPGRI has been transformed from an organization heavily involved in plant collection to an organization playing a supportive role in national and regional programs The IARCs could be viewed as institutions created to strengthen the agricultural superiority of the North The clientele relationship between the donors – which frequently are developed countries – and the centers has perpetuated these perceptions The Lucerne Action program,78 therefore, specifically provides that the CGIAR must broaden its membership to include more developing countries and must increasingly participate in the National Agricultural Research Systems (NARS)79 of developing countries The agricultural research institutions of the host countries gradually have become important clients of the IARCs located in those countries The majority of the ICRISAT’s activities in India are in conformity with the needs of Indian research institutions The IRRI has filled most of the needs for a national program in the Philippines.80 The centers aim to become more open and to encourage participation in their activities of private and nongovernmental organizations Today, private companies are not significant clients of the centers, but this is expected to change in the future.81 It is increasingly realized that more centralization and coordination is needed in the centers’ activities INTERNATIONAL INSTRUMENTS Most of the initial treaties for the protection of biodiversity dealt with specific species and particular ecosystems Most treaties also were regional treaties The Biodiversity Convention adopted during the 1992 UNCED Conference was the first attempt to address biodiversity as a global issue The convention deals not only with protection issues but also with the allocation of benefits from the exploitation and the commercialization of biodiversity resources 2.1 Biodiversity Convention 2.1.1 Biodiversity Protection The Biodiversity Convention82 is the first attempt to deal globally with biodiversity protection The convention is a framework convention It does not establish biodiversity protection standards but attempts to create the outline of a regime for 77 78 79 80 81 82 One such successful network has been established in Europe, the European Cooperative Program for Crop Genetic Resources Networks (ECP/GR), and has stimulated the development of twenty-two European crop databases See IPGRI Strategy, id at See Lucerne Action Programme, CGIAR Ministerial-Level Meeting Feb 9–10, 1995, available online at http://www.worldbank.org/html/cgiar/publications/declara.html Public sector agricultural research is particularly important in developing countries In most developing countries there is not much private agricultural research activity and national agroindustries are in their infancy Most agricultural products are sold to developing countries by transnational corporations See Why is Public Agricultural Research Needed? CGIAR Newsletter, May 1996 CGIAR Governance, supra note 71, at 91 Id at 89 Convention on Biological Diversity, June 5, 1992, reprinted in 31 ILM 822 (1992) [hereinafter CBD] 300 Biodiversity biodiversity protection by focusing on in situ conservation and, marginally, on the restoration of deteriorated ecosystems and gene bank management Declaration of national sovereignty over natural resources, intellectual property rights, and technology transfers become the vehicles for the establishment of such a regime The convention emphasizes that states must preserve biodiversity “as far as possible and as appropriate”83 by undertaking measures that would protect biodiversity in nature or in gene banks The convention clearly places biodiversity resources under national sovereignty.84 The convention places emphasis on national85 and bilateral action based on the presumption that biodiversity can be protected more effectively at the national/bilateral level.86 Gene bank development is a supplemental goal in the overall scheme of biodiversity protection.87 The convention explicitly provides that states must adopt measures of gene bank development “for the purpose of complementing in situ measures.”88 Ex situ conservation measures should preferably take place in the country of origin.89 Because most genetic resources are located in developing countries and gene banks are located in developed countries, the convention calls for an increase in the number of gene banks in the developing world The convention also proposes that it is best for each country to have its own gene banks,90 an approach that is too limited and not very practicable Given the possibilities presented by developing regional and even international gene banks, it is not cost-efficient for many developing countries to keep their own gene banks.91 In the area of gene bank development, self-sufficiency is costly, and collaboration is certainly a more cost-effective means to conserve germplasm.92 The article on in situ conservation presents this type of conservation as the most fundamental method of protecting biodiversity States must “as far as possible and as appropriate” establish a system of protected areas;93 develop guidelines for the selection and management of protected areas;94 regulate and manage biological resources both within and outside protected areas;95 promote “environmentally sound and sustainable development” in areas adjacent to protected areas;96 and adopt the necessary regulatory measures for the protection of endangered species.97 States must manage 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 This terminology is repeated in many of the articles of the convention: arts 5, 6, 7, 8, 9, 10, 11, 14, id Art 15(1), id.: “Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.” See, e.g., art 6(a), id Lyle Glowka et al., A Guide to the Convention on Biological Diversity, Environmental Policy and Law Paper No 30 (IUCN, 1994) Art 9, CBD, supra note 82 Id Art 9(a), id Art 9(b), id Donald L Plucknett et al., Gene Banks and the World’s Food (1987) Id at 191 Art 8(a), CBD, supra note 82 Art 8(b), id Art 8(c), id Art 8(e), id Art 8(k), id International Instruments 301 and control the risks associated with the release of bioengineered organisms98 and prevent the introduction of exotic species that may have adverse impacts on endemic species and habitats.99 Overall, the article on in situ conservation seems intentionally vague so as to give states some latitude in designing their conservation programs Because in practice in situ conservation often has meant total preservation of protected areas based on evictions of the people who inhabit those areas, it would have been desirable if the provisions on in situ conservation included a clause that ensured that in situ conservation will not be pursued by violating human dignity and human rights It must be acknowledged, however, that the Biodiversity Convention is one of the first international treaties100 to recognize the rights of indigenous peoples and local communities to their “knowledge,” “innovations,” and “practices.”101 The Biodiversity Convention provides that the consent of indigenous peoples is needed to utilize their knowledge and that there should be equitable sharing of the benefits derived from such knowledge The specifics of equitable sharing, however, still resist practical application Parties must submit to the Conference of the Parties (COP) the measures taken to implement the convention Parties must also submit an evaluation of the effectiveness of these measures in accomplishing the convention’s objectives.102 Reporting on the effectiveness of measures to preserve biodiversity must be based on an accurate assessment of the existing biodiversity Many attempts have been made to assess the world’s biodiversity resources and to value these resources so that the goals of biodiversity protection become more concrete.103 More than ten years have elapsed from the signing of the Biodiversity Convention, but not much has happened in terms of making the convention a functional instrument for the protection of biodiversity Most of the debate on implementation focuses on the issue of access to genetic resources and equitable sharing of benefits derived from biotechnology that is based on such resources Other issues that have preoccupied the Conference of the Parties include: • the protection of coral reefs;104 • the protection of agricultural biological diversity;105 98 99 100 101 102 103 104 105 Art 8(g), id Art 8(h), id Other post-UNCED agreements contain references to indigenous peoples These references, however, sound still paternalistic According to the Rio Declaration, indigenous peoples have a role to play in environmental conservation because “of their knowledge and traditional practices.” But it is not the peoples themselves – it is the state that must support the “identity, culture and interests” of indigenous peoples See Principle 22, Rio Declaration on Environment and Development, June 14, 1992, reprinted in 31 ILM 874 (1992) Art 8( j), CBD, supra note 82 Arts 26 & 23(4)(a), id See Millennium Ecosystem Assessment (Volumes I-V, 2005) See also United States National Research Council, Valuing Ecosystem Services: Toward Better Environmental Decision-Making (Committee for Assessing and Valuing the Services of Aquatic and Related Terrestrial Ecosystems, National Research Council, 2004) SBSTTA recommendation VI/2: Marine and coastal biological diversity: progress report on the implementation of the programme of work, including the integration of coral reefs, COP 6, April 7–19, 2002 Decision VI/5: Agricultural biological diversity, COP 6, April 7–19, 2002 302 Biodiversity • conducting EIAs and SEAs;106 • the global taxonomy initiative;107 • the implementation of article 8( j) regarding the rights of indigenous peoples to their knowledge The COP invited the World Intellectual Property Organization (WIPO) to examine and to consider mechanisms for the protection of indigenous knowledge including the establishment of a clearing-house mechanism that would enable governments to monitor the implementation of article 8( j);108 • the development of an ecosystem approach;109 • the establishment of incentive measures for the protection of diversity by taking into account the distributional impacts of such measures;110 • the integration of biodiversity protection into sectors of the economy;111 • the protection of forest biodiversity;112 and • the protection of coastal areas and integrated coastal zone management.113 2.1.2 Resource Allocation The Biodiversity Convention has to pursue three objectives: • the conservation of biological diversity; • the sustainable use of its components; and • and the fair and equitable sharing of benefits arising out of the utilization of genetic resources.114 The convention affirms national sovereignty over biodiversity resources The convention sidelines prior regimes115 that generated perceptions that biodiversity resources located under the jurisdiction of a state can be freely accessed The convention provides that access to genetic resources must be subject to the prior informed consent of the country of origin.116 The convention requires state parties to develop legislative and administrative measures in order to share “in a fair and equitable way the benefits arising from the commercial and other utilization of genetic resources” with state parties that provide genetic resources Although the convention does not give the specifics of fair and equitable sharing, it provides that such sharing must occur on mutually agreed terms.117 The convention provides for access to and transfer of technology, such as biotechnology, to developing countries 106 107 108 109 110 111 112 113 114 115 116 117 Decision VI/7: Identification, monitoring, indicators and assessments, COP 6, id Decision VI/8: Global Taxonomy Initiative, COP 6, id Decision VI/10: Article 8( j) and related provisions, COP 6, id Decision VI/12: Ecosystem approach, COP 6, id Decision VI/15: Incentive measures, COP 6, id Decision VI/21: Annex to the Hague Ministerial Declaration of the Conference of the Parties to the Convention on Biological Diversity, COP 6, id Decision VI/22: Forest biological diversity, COP 6, id Decision V/3: Progress report on the implementation of the programme of work on marine and coastal biological diversity, COP 5, May 15–26, 2000 Art 1, CBD, supra note 82 See Undertaking on Plant Genetic Resources, infra notes 139, 144 Art 15(5), CBD, supra note 82 Art 15(7), id International Instruments 303 “under fair and most favourable terms.”118 Article 19 provides that each party must take measures to provide for the participation in technological research activities by parties, especially developing countries, which provided the genetic resources for such research.119 State parties must take measures to advance priority access, on a fair and equitable basis, by developing countries, to benefits coming from technology Such access is provided, however, if the technology is based on the genetic resources found in these developing countries.120 The convention clarifies that new and additional financial resources are needed to enable developing countries to meet “the agreed full incremental costs” of implementing the convention.121 The extent to which developing countries are to implement the convention depends on developed countries executing their commitments with regard to the provision of financial resources and transfer of technology.122 In this context, the convention elucidates – in a spirit echoing concerns vocalized during the WSSD summit – that the implementation of the convention by developing countries “will take fully into account the fact that development and eradication of poverty are the first and overriding priorities of the developing country Parties.”123 A financial mechanism is to be established that would provide resources to developing countries.124 The convention recognizes the rights of indigenous peoples in their knowledge and innovations The convention provides that states must encourage the equitable sharing of benefits arising from the utilization of knowledge, innovations, and practices of indigenous peoples.125 2.1.2.1 Market Value of Biodiversity Bioprospecting involves the extraction of plants and other products from forests for the purpose of scientific exploration or commercialization Previously, bioprospecting was not regulated, and companies and scientists could, as a matter of course, enter into a country and freely collect plants and seeds The Biodiversity Convention has ensured, however, that those who engage in bioprospecting must get the consent of the authorities of the countries concerned To obtain consent, potential users must pay a fee for the issuance of a permit The National Cancer Institute of the United States, the New York Botanical Garden, and private corporations have paid fees or promised royalties for the purposes of accessing biodiversity resources.126 An agreement between the INBio institute, a nonprofit organization created by the government of Costa Rica, and Merck, a U.S pharmaceutical company, was one of the first initiatives to establish processes and fees 118 119 120 121 122 123 124 125 126 Art 16(2), id Art 19(1), id Art 19(2), id Art 20(2), id Art 20(4), id Id Art 21, id Art 8( j), id See Sarah A Laird, Contracts for Biodiversity Prospecting, in Biodiversity Prospecting 99, 113 (Walter V Reid et al., ed., 1993) See also Edgar J Asebey & Jill D Kempenaar, Biodiversity Prospecting: Fulfilling the Mandate of the Biodiversity Convention, 28 Vanderbilt Journal of Transnational Law 703, 721 (1995) 304 Biodiversity for access to biodiversity resources Merck paid an initial $1.1 million fee and agreed to transfer technology, train scientists, and pay royalties in case an INBio extract produced a viable product The agreement was heralded as a victory for developing countries because it recognized that the acquisition and use of germplasm should be compensated At the same time, however, the agreement signaled that biodiversity resources are not as lucrative as they have been presented to be INBio has to provide Merck with two thousand product extracts within two years Given that Merck laboratories need to process five thousand samples per week to be effective, the amount provided by the INBio is too small to be significant and proves that Merck places little emphasis on resources collected from nature.127 According to the experts at Merck, the effort put into screening “tropical samples is fragmented and not adequate for a significant chance of success.”128 In other biodiversity agreements, the royalties negotiated are too small, usually within the range of to percent, and only if the final product incorporates the plant extract, or if the final product is used for the same purposes the plant extract was used traditionally In addition, some of the royalty is usually paid back to the collaborating institution for its research costs.129 Of all the investment opportunities forests provide, bioprospecting returns are the least predictable and the slowest to materialize On average, at least ten years elapse between finding a promising compound and developing a successful drug Investors are deterred by the low market value of what is called “unprocessed biodiversity” – plants and animals of unknown use Markets for untested germplasm not really exist 2.1.2.2 Bilateral Redistribution The CBD130 asserted national control over biodiversity resources The genetic resources covered under the convention are not inclusive of resources acquired before the entry into force of the convention.131 Resources preserved before the entry into force of the convention include the most profitable resources safeguarded in the International Agricultural Research Centers and other gene banks The nonretroactive application of the CBD has created a two-tiered system for the transfer of resources: de facto free access to gene bank resources acquired before the entry into force of the CBD, and restricted access to all other resources discovered or acceded to international collections after the adoption of the convention The CBD provides that access to natural resources is not allowed without some equitable sharing of the benefits derived from the manipulation of resources According to the convention, access to germplasm resources cannot take place 127 128 Asebey, id at 725–28 Georg Albers-Schonberg, The Pharmaceutical Discovery Process, in Intellectual Property Rights and Biodiversity Conservation 67, 91 (Timothy M Swanson, ed., 1998) 129 Asebey, supra note 126, at 730–32 A recent agreement between Novartis and Brazil seems to be more generous in terms of initial outlays but still not that generous in terms of royalties Novartis is required for pay two million Swiss francs, as an initial outlay, and then 250 Swiss francs for every selected promising organism However if Novartis decides to commercialize an invention, Brazil will get a mere 0.5 percent of annual sales See S Pe˜ a-Neira et al., Equitably Sharing Benefits from the Utilization n of Natural Genetic Resources: The Brazilian Interpretation of the Convention on Biological Diversity, 6(3) Electronic Journal of Comparative Law (Oct 2002) 130 Convention on Biological Diversity, June 5, 1992, reprinted in 31 ILM 826 (1992) 131 Art 15(3), id International Instruments 305 without a prior agreement on the equitable sharing of technology that manipulates the resources – that is, biotechnology This provision, which calls for bilateral agreements regarding the transfer of resources and technologies, has provoked the opposition of the biotechnology industry that is reluctant to share its applications with developing countries and has prevented the United States from ratifying the convention In accordance with the CBD, countries have adopted legislation that provides procedures for access to their resources Countries typically require that bioprospectors provide a letter of intent before engaging in collection, including: the number of specimens required, the manner of collecting those specimens, and their final destination In some cases it is not only the consent of the national government that is required but also the local and indigenous communities’ consent.132 Countries adopted restrictive access regulations in the hope of obtaining substantial monetary benefits from access fees This type of legislation, however, has not brought the desired monetary benefits to the South and has unnecessarily curbed the interest of the North in unexplored resources As some commentators have put it, bioprospecting “profits have been elusive, and win-win opportunities have been few and far between.”133 Technology transfers and capacity building are the most that countries should expect from bioprospecting agreements Bioprospecting agreements rarely bring to developing countries the “green gold” for which they initially hoped Few countries have tried to ensure that preconditions for access to their resources not amount to prohibitions and that access to germplasm resources remains more or less flexible Countries have tried, for instance, to reduce the number of stakeholders with which a company has to negotiate.134 Some countries have provided for bioprospecting rights in areas where property rights are clear135 and have treated noncommercial research more favorably Technology transfers and capacity building have been the preferred tradeoffs for resource access rather than large inflows of cash compensation Bioprospecting agreements or Material Transfer Agreements (MTAs), although not very profitable, are becoming the means for transferring germplasm Bilateral MTAs could allow for access while prohibiting any assertion of intellectual property rights over germplasm; these agreements also could allow for the assertion of intellectual property rights under an obligation to share the royalties or could leave contentious matters to future negotiations Because of the high costs of negotiating and enforcing MTAs, MTAs are relatively rare To avoid the costs associated with negotiating bilateral MTAs, it has been 132 Most national laws today distinguish between commercial and academic research even if the borderline between these two types of research is often blurred, for instance, when a corporation is funding a research program of an academic institution See Conference of the Parties to the Convention on Biological Diversity, Third Meeting, November 4–15, 1996, UNEP/CBD/COP/3/20, at 13, Oct 5, 1996 [hereinafter National Legislation] See also Ana Sittenfeld & Rodrigo Gamez, Biodiversity Prospecting by INBio, in Biodiversity Prospecting: Using Genetic Resources for Sustainable Development 69, 82 (Walter V Reid et al., eds., 1993) 133 Access to Genetic Resources: An Evaluation of the Development and Implementation of Recent Regulation and Access Agreements, at v (Prepared for the Biodiversity Action Network by the Environmental Policy Studies Workshop, School of International and Public Affairs, Columbia University, 1999) 134 Id at 23 135 Id at iii 306 Biodiversity proposed that a multilateral system for the transfer of germplasm is needed.136 Such a system was adopted in 2001 for food and agriculture resources The Treaty on Plant Genetic Resources for Food and Agriculture was adopted under the auspices of the FAO, the organization that deals with the protection of agrobiodiversity.137 2.1.2.3 Transnational Redistribution The Treaty on Plant Genetic Resources for Food and Agriculture was adopted after nine years of negotiations on November 3, 2001.138 The treaty has its roots in the International Undertaking on Plant Genetic Resources The International Undertaking on Plant Genetic Resources (the Undertaking) was one of the first instruments to deal with germplasm resources for food and agriculture and it was not a legally binding instrument.139 In the 1983 version of the Undertaking, it was mentioned that plant genetic resources are a heritage of mankind and should be available without restriction.140 This version of the Undertaking was an expression of the frustration of developing countries with the increasing protection of plant breeders’ rights Developing countries, using the common heritage rule, asserted that access to germplasm should be free Developing countries therefore created what has been called a “strategic legal inconsistency” in the hope of acquiring access to improved germplasm.141 The declaration did not change the international reality, however, and – although germplasm found in the wild continued to be available free of charge – improved breeder varieties remained costly for many of the farmers of the developing world In fact, eight industrialized countries issued reservations to the Undertaking.142 The Undertaking was modified in 1989, under the pressure of developed countries, to clarify that “free access does not mean free of charge.”143 It was modified also in 1991,144 when developing countries realized that bioprospecting could be profitable and monetary and other benefits could be derived from plant genetic resources The 1991 amendment turned on its head the principle of free access by asserting that, although plant genetic resources are the heritage of mankind, they are subject to the sovereignty of states over plant genetic resources 136 137 138 139 140 141 142 143 144 IPGRI, Access to Plant Genetic Resources and the Equitable Sharing of Benefits 33 (Issues in Genetic Resources, No 4, June 1996) Although biodiversity, in general, is now under the preview of the CBD and the governance system of that convention, the protection of agrobiodiversity has been the prerogative of the FAO This bifurcated system has been the source of contention as the FAO is concerned that the COP of the CBD intervenes in matters that should be under its control And the COP of the CBD is compelled, because of the broad mandate of the Biodiversity Convention, to exercise jurisdictional control over most biodiversity resources, especially those perceived to be at risk International Treaty on Plant Genetic Resources for Food and Agriculture, Nov 3, 2001, available online at http://www.fao.org/Legal/TREATIES The convention entered into force in 2004 Resolution 8/83, Twenty-Second Session, FAO Conference, Nov 5–23, 1983 Article 1, id See Kal Raustiala & David G Victor, The Regime Complex for Plant Genetic Resources, International Organization 37, 38, Spring 2004, available online at http://ssrn.com/abstract=441463 (Social Science Research Network Electronic Paper Collection) Id at 19 Resolution 4/89, Twenty-Fifth Session, FAO Conference, Nov 11–29, 1989 The amended Undertaking also recognized plant breeders’ rights Resolution 3/91, Twenty-Sixth Session, FAO Conference, Nov 9–27, 1991 ... request their standardization The FAO has been 163 164 165 166 Vicu˜ a, supra note 41, at 2 16 n FAO Fisheries, supra note 2, at 66 Id at 67 Id  268 Fisheries Resources working on the development... Consultative Group on International Agricultural Research (CGIAR) was established in 197170 as an informal group of private and public donors The CGIAR 63 64 65 66 67 68 69 70 Miguel A Alteri... compliance committee, a scientific committee, and a secretariat.1 76 167 168 169 170 171 172 173 174 175 1 76 Id at 67 ? ?68 Id at 68 Convention on the Conservation and Management of Fishery Resources