bilderbeek,simone, biodiversity as political game

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Biodiversity as Political Game

Author(s): Simone BilderbeekReviewed work(s):Source: Politics and the Life Sciences, Vol. 12, No. 2 (Aug., 1993), pp. 265-272Published by: Association for Politics and the Life SciencesStable URL: http://www.jstor.org/stable/4235962 .

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PLS,12(2),265-272,BeechTreePublishing,0 WatfordClose,Guildford, urreyGUI 2EP,UK.

COMMENTARY

Biodiversity as Political Game

Simone Bilderbeek Netherlands National Committee for IUCN(The World Conservation Union), The Netherlands

CONSERVATIONOF BIOLOGICAL diversityis a condition for human survival. We are but one

species sharing this earth with millions of otherspecies, and we are mainly, if not entirely, dependentupon these other species for our food, clothes, housing,and many other basic needs. So long as human beingsare incapable of eating inorganic material, we mustconserve the earth's biological resources, and thus theirdiversity.

Seen from this perspective, the Convention on Bio-logical Diversity (adopted in Nairobi, 1992) is the mostimportant convention ever negotiated. Yet, most peoplewould not have heard of this convention if former U.S.President George Bush had not been so kind as to refuseto sign it. This refusal created a lovely political scandalover the biggest intergovernmental conference everheld, the United Nations Conference on Environmentand Development (UNCED, or the "Earth Summit,"

June, 1992, Rio de Janeiro). And it created immortalfame for a convention that would undoubtedly alreadyhave been forgotten if all states at Rio had silently signedit.

Failure to appreciate the importance of biodiversityis partly due to the main defenders of biodiversity them-selves?the nature conservationists. Biodiversity haslong been interpreted as simply "species conservation."Consequently, the conservation of biodiversity was seenas a responsibility of national park managers and biolo-gists only. Apart from that, the nature conservationistsdefended biodiversity mainly, if not only, on basis of theintrinsic value of biodiversity. In their view, the intrinsicvalue of biodiversity was indisputable, and thus it stoodmiles above potential economic and political argumentsagainst conserving biodiversity. This attitude is idealis-tic, but impractical. Economic and political decision-ma-kers have never been very impressed with moralarguments; their decision-making is usually based uponeconomic and political arguments. And there are a largenumber of important arguments?in addition to intrin-sic value?for conserving biodiversity, including ecologi-cal, genetic, social, economic, scientific, educational,cultural, recreational, and aesthetic1 value.

This essay begins with a discussion of the motivationto negotiate a convention on biological diversity. It goeson to discuss some of the key political disputes that sawthe floor at the negotiations for this convention. Thesenegotiations took place in two working groups. WorkingGroup I dealt with the "real stuff* of the convention, theguidelines for the conservation and sustainable use ofbiodiversity, as well as some legal questions. The essayprovides an overview of these issues. Most of my atten-tion, however, will be focused on the key political de-bates concerning biodiversity, which were dealt with by

Simone Bilderbeek is Legal Project Officer at the NetherlandsNational Committee for IUCN, Plantage Middenlaan 2B, 1018DD Amsterdam, The Netherlands. She has studied both inter-national and national law at the University of Amsterdam. As arepresentative of an international nongovernmental organiza-tion (NGO), she was involved in the negotiations towards theConvention on Biodiversity and in the UNCED process. MsBilderbeek is currently serving as a member of the convention'sExpert Panel 3 on Technology Transfer and Financial Issues asco-coordinator of the international NGO Task Group on Bio-diversity; as secretary of the international NGO Working Groupon Institutional Change, and as a member of the CoordinatingGroup of the Alliance of Northern People for Environment andDevelopment. She is author of several articles on biologicaldiversity and related matters. She organized the InternationalEnvironmental Law Conference (The Hague, 1991), on thebasis of which she edited Biodiversity and International Law(IOS Press, 1992).

This essay does not necessarily reflect the official position of the Netherlands National Committee for IUCN or any other organization.

Politics and the Life Sciences August 1993 0730-9384/93/020265-8 SUS08.00 ? Beech Tree Publishing 1993 265

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BiodiversityWorking Group IL This group dealt with issues likeaccess to genetic resources, biosafety, intellectualproperty rights, and the financial mechanism of theconvention.

Biodiversity and a Diversity of Interests

The people who, informally, inspired the United NationsEnvironment Program (UNEP) to initiate negotiationsabout a convention on biodiversity were concernedabout the lack of a global agreement on all aspects ofbiodiversity.2 Prior to 1992, there were a number ofconventions that dealt with biodiversity in specific re-gions,3 and a number of conventions that dealt withspecific aspects of biodiversity.4 However, there was noglobal convention to cover biodiversity as a whole. Sincethe decline of biodiversity was considered a global prob-lem, since its causes are present in all countries, and sinceits effects touch upon the economic, scientific, social,and existence values of all peoples, a global conventionwas considered necessary to conserve biodiversity.This motivation might seem satisfactory in itself, butit does not yet explain why one needs a convention. Toooften, it is presumed that a challenge such as the needfor conservation implies automatically that one needs aconvention. Thus, it has been argued that there is a needfor a forest convention, simply because there is a needfor forest conservation. Such presumption dangerouslyoverestimates the power of pieces of paper. More im-portantly, it should not always be pretended that globalaction is the only way to cope with environmental prob-lems?many environmental problems are rooted in localconditions. The most important action to conserve bio-diversity will have to take place at local levels, by localcommunities and grass-roots organizations. These im-portant actors are hardly mentioned in the conventionand, happily, they do not need a convention to conducttheir activities. A convention is needed only when (1) theroot causes of a problem are at the international level,or (2) when it is otherwise impossible for a country tosolve a problem on its own. And in both cases one needsa diversity of interests, as there is no need for negotiatinga convention if the countries involved all agree with eachother.

The first motivation could have been true for theConvention on Biological Diversity, as the depletion ofbiological diversity has important roots in internationalinterrelationships, in particular in the economic field.An important reason to develop a global conventionwould have been to cope with the international causes ofoverexploitation of biological resources. These causesinclude, in particular, low commodity prices for productslike timber, fish, and agricultural products, and the debtcrises. These and other structural inequalities forcemany developing countries to overexploit their natural

resources; this overexploitation is one of the key causesof the loss of species and ecosystems.Regretfully, neither the negotiations for the biodiver-

sity convention, nor UNCED as a whole, turned out tobe the forum to discuss these underlying causes of globalenvironmental degradation. For many reasons, not leastthe strong influence of industry and other powerfuleconomic actors in the UNCED preparations, theseunderlying causes got far too little attention throughoutthe process. Even a modest reference to the impact ofinternational trade on biodiversity was deleted duringthe negotiations,5 while the word "debt" never evenappeared in one of the drafts.So what were the real motivations behind the Con-vention on Biological Biodiversity? One clear motiva-tion was to provide multilateral aid for developingcountries to help them conserve their biodiversity. Andthe donor countries were willing to contribute to thismultilateral aid. First, they were under political pressurefrom their own citizens to protect beautiful animals. Andsecond, they had become aware of the potential value ofgenetic resources for their biotechnology industry. Thiscreated a unique situation at the negotiations: the de-veloping countries had something that was of interest toother countries (see Tewolde Berhan, 1992). As a rep-resentative of a Colombian NGO (nongovernmentalorganization) stated two years ago: "do not forget thatthe North has the technology, but the South has the'biom (Mayr, 1992). The South needed the North, bothfor the money and technology needed to conserve theirbiological diversity and for the long-term investmentsnecessary to use the elements of biodiversity in a sustain-able way. And the North needed the South, as they wereunder strong pressure from the public as a whole andfrom NGOs in particular to ensure that beautiful ani-mals were protected.Of course, there were also some common goals be-hind the convention, like the need to ensure that geneticinformation for medical and agricultural research wasprotected for the benefit of present and future gener-ations. However, it should be acknowledged that thisargument contained no political motivation for the bio-diversity convention, at least not for the industrializedcountries. After all, genetic information was more or less"free to grab" until the negotiations were started and theconvention introduced the objective that the benefitsarising out of the utilization of genetic resources shouldbe equitably shared!

The Conservation Articles

But before we go on with these "hot issues," some atten-tion should be devoted to the normal day-to-day mattersthat were covered by the first fourteen articles of theconvention?the measures for the conservation and

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Biodiversitysustainable use of biodiversity itself. The debate on thesearticles contained relatively little political content. Onone hand, the negotiating parties shared a general under-standing of what measures should be taken to conservebiodiversity. And on the other hand, they also shared ageneral understanding that no one wanted to be forcedto take these measures. Consequently, all substantivearticles begin with the familiar qualifying words, "TheContracting Parties shall, as far as possible and as appro-priate...."The notable exception is Article 3, which is a codifi-cation of the famous Article 21 of the Stockholm Decla-ration. The Stockholm Declaration was the mainoutcome of the "first" UNCED, the United NationsConference on the Human Environment, held at Stock-holm in 1972. Like the Rio Declaration on Environmentand Development, the Stockholm Declaration is legallynonbinding, except for this famous Article 21, which hasalways been considered one of the few, if not the only,binding principles of customary international environ-mental law. It reads:

States have, in accordance with the Charter of theUnited Nations and the principles of internationallaw, the sovereign right to exploit their own resour-ces pursuant to their own environmental policies,and the responsibility to ensure that activities with-in their jurisdiction or control do not cause damageto the environment of other States or of areasbeyond the limits of national jurisdiction.

According to classical international law, customary lawhas the same status as a convention. However, the debateat the negotiations showed that this theory is outdated,as many countries opposed including this article, andwhen it was finally agreed upon (under the rather strangetitle of "principle," as no one dared to add anything tothis fragile compromise), they considered this a "break-through in international law."

Meanwhile, all the other articles do not have muchmore legal status than recommendations. From a legalperspective, there will be no way in which the parties tothe convention can be forced to fulfill any of these con-servation commitments if they are not willing to do so(presuming there is ever any opportunity to force acountry to fulfill a legally binding commitment when itrefuses to do so). The negotiators even refused to includea global list of species and areas of special interest in theconvention, as they were afraid that such a list could beused as a strong political tool to hold them to their owncommitments.

So what were these commitments? It was alreadymentioned that two of the most important causes ofbiodiversity depletion, the debt crisis and the inequitableterms of trade, were left undisputed. However, a thirdcrucial measure has been taken up by the convention,

namely the integration of biodiversity concerns in allrelevant policies. Article 6 reads:Each Contracting Party shall, in accordance withits particular conditions and capabilities...(b) Integrate, as far as possible and as appropriate,the conservation and sustainable use of biologicaldiversity in relevant sectoral or cross-sectoralplans, programmes and policies.

Article 10 adds, among other things, the following:Each Contracting Party shall, as far as possible andas appropriate:(a) Integrate consideration of the conservation andsustainable use of biological resources into nation-al decision-making;(b) Adopt measures relating to the use of biologi-cal resources to avoid or minimize adverse impactson biological diversity;(c) Protect and encourage customary use of bio-logical resources in accordance with traditionalcultural practices that are compatible with conser-vation or sustainable use requirements....

And Article 11 reads:Each Contracting Party shall, as far as possible andas appropriate, adopt economically and sociallysound measures that act as incentives for the con-servation and sustainable use of components ofbiological diversity.

These articles are amongst the most important in theconvention, as they touch upon the root causes of bio-diversity depletion?overexploitation of biological re-sources, degradation of biodiversity due to other sectoralpolicies (such as infrastructural projects and the lack ofincentives to conserve biodiversity due to inequitabledistribution of the benefits of biological resources ingeneral), and land rights in particular.

Furthermore, the "conservation articles" of the con-vention deal with the need for cooperation (Article 5),

The root causes of biodiversitydepletion?overexploitation ofbiological resources, degradation ofbiodiversity due to policies such asinfrastructural projects and the lackof incentives to conserve biodiversity,and land rights

Politics and the Life Sciences August 1993 267



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Biodiversityidentification and monitoring (Article 7), in-situ conser-vation (Article 8), ex-situ conservation (Article 9), re-search and training (Article 10), public education andawareness (Article 13) and impact assessment and mini-mizing adverse impacts (Article 14). All the elementswithin these articles are in themselves extremely valu-able. The main political disputes concerning these ar-ticles arose mostly (although not exclusively) out of theconcern of the developing countries that they would takeon too many commitments. Countries such as the UnitedKingdom and the United States did not even bother touse the argument that a certain article should be "soft-ened" because the hard version would mean that theywould have to change their national legislation. But is itnot the basic purpose of all international negotiations tocause some change in national legislation?

Consequently, the first fourteen articles of the con-vention include a number of very interesting recommen-dations and guidelines for biodiversity conservation, butfew real commitments. Thus, the "real debates" weretaking place in the other working group.

Sharing the Benefits of Genetic Information

The main political discussions throughout the negotia-tions referred to the genetic information that is con-tained within biodiversity. Genetic information is notthe same as biodiversity, but the amount of genetic in-formation increases parallel to increases in geneticdiversity. This genetic information can be used for bio-technological research, the benefits of which include(amongst others) commercial profits for the companiesdeveloping products on the basis of that research. Theseprofits do not naturally flow back to the countries andcommunities that provided the original information.The initiators of the convention were aware of thispotential economic value of genetic information formedical and agricultural research. Only a very small partof the world's genetic resources has been investigated forpossible pharmaceutical or agricultural value. Thosegenetic resources that have actually been utilized haveproduced millions of dollars of profit for the companiesthat made use of this genetic information.

Meanwhile, it is not unimportant to realize that mostgenetic information is situated in developing countries,while most biotechnological companies are situated indeveloped countries.6 So, if only a small percentage ofthese profits?say five percent?would flow back to aninstitution that has the task of conserving the pool ofgenetic resources, an enormous flow of funds for bio-diversity conservation would be established. And sincemoney rules the world, and since the lack of funds hasalways been considered to be one of the main problemsin biodiversity conservation, such a system was con-sidered to be one of the main tools of the convention.

So far as genetic information for agricultural researchis concerned, a mechanism had already been set up bythe Food and Agricultural Organization (FAO) of theUN.7 The purpose of this mechanism was to ensure thatat least some of the benefits of commercial exploitationof traditional varieties of plant genetic resources areshared with the original owners of these resources, inmost cases small farmers in remote rural areas in devel-oping countries. There were a number of complications,though, as farmers in remote areas are, regretfully, notalways very business-like?they tend to share their var-ieties with other farmers without first going to the near-est patent bureau (often more than 300 miles away) tosafeguard their intellectual property rights on the var-iety.8 Consequently, it is often impossible to find outwhich variety was originally developed by what farmer.And mainly for that reason, it was decided that farmers'rights should be "vested in the International Com-munity, as trustee for present and future generations offarmers, for the purpose of ensuring full benefits tofarmers, and supporting the continuation of their con-tributions...." The benefits of traditional varieties willnot flow directly to the farmers, but they will be con-tributed to the International Fund for Plant GeneticResources.

This fund is to be used to finance a large number ofprojects for the conservation and collection of plantgenetic resources. As such, farmers' rights are incom-parable with other intellectual property rights, as no-body will ever question what a biotechnologicalcompany does with the royalties of its patents. On theother hand, one could see it as a useful model for a newkind of intellectual property right that obliges the ownerof the intellectual property right to use the royalties forfurther research and development. As such, the systemof farmers' rights is an extremely valuable one, especiallyconsidering the vagueness of reward proposals for bio-diversity-related knowledge in general. The principle isa daring one. The only problem with the system is thatthe fund itself is filled on a voluntary basis, with the resultthat it is, of course, more or less empty.

Especially in the field of genetic information for agri-culture, scientists have always favored the principle offree access to information. The Convention on Biologi-cal Diversity itself does not necessarily hamper this sys-tem, as the free accessibility of genes forms one of its keyprinciples. Article 15 (a) reads in this respect: "EachContracting party shall endeavour to create conditionsto facilitate access to genetic resources for environmen-tally sound uses by other Contracting Parties and not toimpose restrictions that run counter to the objectives ofthis Convention."

However, the convention was not the only politicaldevelopment in the field of genetic resources in 1992. Aprobably even more important development was the factthat a number of U.S.-based biotechnological companies




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Biodiversitymade a successful attempt to impose upon the rest of theworld their practices of patenting living organisms. Themeans by which this imposition occurred?the GeneralAgreement on Tariffe and Trade (GATT)?is a tool thatcan be used to impose almost anything on the developingcountries these days (see Porter, 1992). Developingcountries are placed in a very weak position in theGATT-negotiations and are willing to accept almostevery concession they have to make. This includes ac-cepting systems for protection of intellectual propertyrights that are not specifically designed for economiesand industries that are, and likely always will be, unde-veloped compared to older and better-equippedeconomies.

Another forum in which the U.S. has a greater saythan it should have, according to rules of internationallaw, is the Consultative Group on International Agricul-tural Research (CGIAR), an organization set up by themost important donors of multilateral aid for agricul-ture. Despite the many doubts among its members overwhether patents are the most appropriate and adequateform of intellectual property rights protection for livinginventions, the CGIAR concluded at its meeting in May,1992 that it should be possible to patent the geneticmaterial stored within its genebanks. Consequently, aninstitution that has always favored the principle of freeaccess is currently allowing its members to use a restric-tive form of intellectual property rights to receive areward for genetic material that has been gathered inaccordance with the principle of free access. The discus-sion concerning this complicated matter has not yet beenclosed within CGIAR circles. But if some of the majorgenebanks of the world are going to break with theprinciple of free access, should the deliverers of geneticmaterial become more business-like? The conventionhas provided an opening for such a business-like ap-proach (Article 15 [7]):

Each Contracting Party shall take legislative, ad-ministrative or policy measures, as appropriate,and in accordance with Articles 16 and 19 and,where necessary, through the financial mechanismestablished by Articles 20 and 21 with the aim ofsharing in a fair and equitable way the results ofresearch and development and the benefits arisingfrom the commercial and other utilization ofgenetic resources with the Contracting Party pro-viding such resources. Such sharing shall be uponmutually agreed terms.

Recently, an expert panel set up by the United NationsEnvironment Program recommended that this para-graph offers the basis for negotiations for a multilateralprotocol, which could be partly modeled after the above-mentioned FAO system?which is not legally binding.Butwhatwould the details of such mutually agreed terms

be? A multilateral fund based upon voluntary contribu-tions? Or should the deliverers of genetic informationbe entitled to some form of intellectual property right?A patent right, perhaps?

Intellectual Property RightsLike many other articles, the provisions on intellectualproperty rights in the convention are extremely vague.And thus, like many other articles, they are subject to avariety of interpretations. Article 16 of the convention,for example, is a beautiful legal puzzle in which almostevery minor provision refers to previous and later provi-sions. For example, paragraph 2 of Article 16 states:

In the case of technology subject to patents andother intellectual property rights, such access andtransfer shall be provided on terms which recog-nize and are consistent with the adequate and ef-fective protection of intellectual property right...However, paragraph 5 of the same article states that

the Contracting Parties, recognizing that patentsand other intellectual property rights may have aninfluence on the implementation of this conven-tion, shall cooperate in this regard subject tonational legislation and international law in orderto ensure that such rights are supportive of and donot run counter to its objectives.

Contradictory? If one takes into account the history ofthese two provisions, this is easily clarified. Paragraph 5,drafted at the next-to-last meeting of the negotiators inFebruary, 1992, was a compromise text by Norway, in aversion that was slightly amended by the Netherlands.Discussion was rather short and the U.S. did not make aclear objection. However, it was undoubtedly this textthat alarmed the Association of Biotechnological Com-panies and other biotechnological industries in the U.S.that their patent policies might be at risk. In the periodbefore the last negotiating meeting, a powerful lobbyingcampaign was set up; partly due to this campaign, theU.S. negotiating party appeared at the last negotiatingmeeting with the most strict and narrow instructions anyparty had ever had. But instructions or no instructions,they could not renegotiate texts that were already con-cluded. Paragraph 3, though, was not yet concluded, andso the U.S. could save the situation by adding a clausethat recognized the need for "adequate and effectiveprotection of intellectual property rights."Did the U.S. win? No?at least not if this clause wasmeant to ensure that the whole world would accept theU.S. system of patent laws for living inventions. After all,who says patents are the only "adequate and effective




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Biodiversityprotection of intellectual property rights?" Plantbreeder's rights can be interpreted that way. And socould a system of compulsory licensing, which couldfacilitate the transfer of technology while offering ageneral financial compensation to the original owners ofthat technology. So, does this mean that the conventionis a victory to the NGOs who have always rejected patentrights? Well, many NGOs themselves do not seem to feelthat way. They tend to reject the convention, since it doesallow the patenting of living inventions. But even thoughit would have been wonderful if the convention wouldhave contained a clause: "The Contracting Parties willnever accept any patenting on any living invention," onehas to remain realistic. Such a clause was never in any ofthe drafts.

However, it is realistic to state that patenting of livinginventions is incompatible with the "fair and equitablesharing of the benefits arising out of the utilization ofgenetic resources." And it is also uncertain whether theconvention rejects a system in which technologies to betransferred can be subject to compulsory licensing?amechanism by which countries can oblige patent holdersto make socially useful products available. Of course, theU.S. will immediately claim that this is not the case andthat the convention should be interpreted in a way thatcalls for world-wide respect for its patents. Well, let usthen declare solemnly to the U.S. that it has very little tooffer as an interpreter of the convention so long as it hasnot signed the document.Will the convention produce a breakthrough in inter-national patent law? This will probably depend upon theforums in which the real decisions are to be made?theGATT. After all, a legal argument arising out of a not-yet-in-force nature conservation agreement is unlikelyto have much impact on negotiations that depend moreon such issues as the North American Free Trade Agree-ment (NAFTA) and the Common Agricultural Policy ofthe European Community (CAP). But there is at leastone more argument to support developing countries thatwant to determine for themselves whether "patents areindispensable for any progress in their economies" (as aGerman diplomat asserted after a lively reception duringthe last negotiating session for the convention in Nairobiin May, 1992).

Who Pays the Bill?

Last but not least, the toughest political disputes at thenegotiations for the biodiversity convention concernedthe financial resources and the financial mechanism forthe convention. These negotiations were closely linkedto the negotiations for the Climate Convention and tothe negotiations that were taking place parallel to theconvention in the preparatory meetings for the "EarthSummit" itself. By themselves, the financial negotiations

formed a beautiful example of top-level UNnegotiations.If one conference has ever proven that money rulesthe world, it is UNCED. Throughout the negotiationprocess the G-77 (Group of Seventy-Seven; a bloc ofAsian, African, and Latin American countries), whichnormally has an extremely hard time uniting itself, hadone key position that all their members agreed upon:"We will not agree with anything if we don't get paid forit." Considering the fact that there is a clear need foradditional funds to assist developing countries in makingthe necessary investments for sustainable development,this position is understandable?a sustainable worldcannot be built upon voluntary gifts. Therefore, the onlyway in which the developing countries could garner someconcrete financial commitments from the industrializedcountries was to "push and pull" with their willingnessto make any substantive commitments. Meanwhile, allparties knew in advance that there was no way the indus-trialized countries would agree to specific mandatorycontributions to the fund. So it took three days of high-level marathon negotiations at (or rather, after the endof) the last meeting a week before UNCED to draft thefinal text. It reads:

The developed country Parties shall provide newand additional financial resources to enable de-veloping country Parties to meet the agreed fullincremental costs to them of implementingmeasures which fulfil the obligations of this Con-vention and to benefit from its provisions andwhich costs are agreed between a developingcountry Party and the institutional structurereferred to in Article 21, in accordance with policy,strategy, programme priorities and eligibility crite-ria and an indicative list of incremental Costs es-tablished by the Conference of the Parties....(Article 20 [2])

Article 21 on the financial mechanism "clarifies" further:The contributions shall be such as to take intoaccount the need for predictability, adequacy andtimely flow of funds referred to in Article 20 inaccordance with the amount of resources neededto be decided periodically by the Conference of theParties and the importance of burdensharingamong the contributing Parties included in the listreferred to in Article 20, paragraph 2....

Anyone who feels bothered by the fact that he or she doesnot totally understand these texts may comfort him- orherself with the thought that the delegations themselvesdid not understand them either. In fact, some of thehottest debates during UNCED itself were about thecorrect interpretation of these articles. First, nobody




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Biodiversity

The Global Environment Facility isnot the most logical financialmechanism for biodiversityconservation, since the depletion ofbiodiversity is not solely a globalproblem?it is also a local problem

knows exactly what "agreed full incremental costs" are.One could attempt to give a correct legal definition ofthis term, but it should be kept in mind that it is a typicalpolitical compromise text that will probably be inter-preted according to political, and not according to legal,rules.

Second, major confusion exists about the exact man-date of the Conference of the Parties according to Article21. Does the Conference of the Parties have the au-thority to decide solely the "amount of resourcesneeded"? Or does it also have the authority to determine"the contributions"? In the latter case, the developingcountries, which will probably form the majority withinthe Conference of the Parties, would be able to overrulethe industrialized countries and determine the specificcontributions of these donor countries. Such a situationwas considered to be unacceptable by the major donors.And even though the second interpretation is less ob-vious from a legal point of view, the donor countriesconsidered it threatening enough to submit a declarationthat this interpretation was unacceptable to them.9 Itshould be noted that such a "declaration of understand-ing" does not have any legal status. The final interpreta-tion of this clause will be determined in the course ofimplementing the convention, and according to politicalrather than legal rules.The same can be said for the outcome of the othermajor financial debate?about the financial mechanismthat is to administer the funds. From the beginning ofthe negotiations it was clear that the industrializedcountries had a very narrow instruction in this respect.In order to avoid "miscoordination" on multilateral aidfor sustainable development?and to increase the con-trol of donor countries?they wanted one central mech-anism, the Global Environment Facility (GEF), toadminister the funds for both the Convention on Biol-ogical Diversity and the Climate Convention. This fa-cility has been set up by the World Bank, the UnitedNations Development Program, and the United NationsEnvironment Program to provide "new and additional"funds for developing countries to cover the "incrementalcosts" of taking measures to cope with "global environ-mental problems."In this respect, the GEF is not the most logical finan-

cial mechanism for biodiversity conservation, since thedepletion of biodiversity is not solely a global problem-it is also a local problem. In fact, most funds needed inthe coming decades should be seen as an investment inthe biological and genetic resources of developingcountries, so that these countries can profit from thesocial and economic value of these resources in the nearfuture. These investments are extremely important, butas far as they are economically viable for the developingcountries, there are no "incremental costs" at stake.

The developing countries themselves had differentobjections to the GEF. It was known that the adminis-trator of the GEF, the World Bank, had an overwhelm-ing influence in the practical operations of the facility.And even though the developing countries will probablyacquire an equal say in the Participants meeting of theGEF, they do not have any say whatsoever in the WorldBank. Precisely for this reason?and to have a strongerposition in the negotiations about the restructuring ofthe GEF that went on parallel to the UNCED prepara-tions?they strongly opposed GEF until the very lastmoment. The battle was to be lost, though, as the indus-trialized countries simply refused to give funds to an-other mechanism.

However, the G-77 did succeed in requiring a largemandate for the Conference of the Parties in givingguidance to the financial mechanism, and they also en-sured that GEF was only mentioned as an interim mech-anism (in one of the last articles of the convention). Lastbut not least, the last sentence of Article 21 (1) states:"The mechanism shall operate within a democratic andtransparent system of governance." If interpreted in alegal manner, this article forms a time bomb under theGEF, or at least under its role as the financial mechanismof the convention. Even the most far-going proposals toreform the GEF do not go so far as to make it "demo-cratic." After all, a democratic system of governancewould imply that every country, whether donor or not,would have an equal say. This would imply that thedeveloping countries, which constitute a majority, wouldbe able to govern the facility. However, it is known thatthe donor countries will never give contributions to, orotherwise accept, a financial mechanism that is ruled bythe developing countries. Once again, the interpretationof this article will probably be made according to politi-cal rather than legal rules.

Conclusion

Anyone who thought that the political games on bio-diversity would be halted after UNCED has been provenwrong. This is actually for the best, since there are quitea number of important questions still to be answered.There are more or less concrete, though informal, pro-posals for a protocol on biosafety and the sharing




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Biodiversityof benefits of genetic information. In particular theproposal to negotiate a protocol on the safe treatmentof genetically modified organisms (GMOs) has caused apolitical uproar. In this debate it is, once again, theU.S.?stating that biosafety has nothing to do with bio-diversity?against the rest of the world, which is highlyconcerned about the potential risks of the unregulatedrelease of GMOs for biodiversity. Apart from that, thefinancial disputes will go on, probably forever. Butmoney or no money, the real action to be undertaken byall parties concerns conservation, not conversation. Theeconomic, social, and spiritual value of biodiversity is toogreat an asset, especially for developing countries, to belost. And this requires concrete, strong measures at thelocal, national, and international levels.

Notes1. See the first paragraph of the preamble of the convention.2. The first ideas probably came forward from a number ofpeople working closely with the Environmental Law Center ofthe World Conservation Union.3. Forinstance, the Convention on European Wildlife and NaturalHabitats (Bern, 1979), the Convention on Nature Protectionand Wildlife Preservation in the Western Hemisphere (Wash-ington, 1940), and the African Convention on Conservation ofNature and Natural Resources (Algiers, 1968).4. For instance, the Convention on Wetlands of InternationalImportance, Especially as Waterfowl Habitat (Ramsar, 1971),the Convention on the Conservation of Migratory Species of

WildAnimals (Bonn, 1980), the Convention to Regulate Inter-national Trade in Endangered Species of Flora and Fauna(Washington, 1973), and the formally nonbinding but politi-cally important International Undertaking on Plant GeneticResources.Originally,Article 11 of the convention stated that the Influen-ces of international trade on biodiversity should be considered.See, amongst others, Third World NetworkBriefing Papers forUNCED (Penang, Malaysia, June, 1992).InternationalUndertaking on Plant Genetic Resources, 1984.See also Progress Report on the FAO Global System forConservation and Utilization of Plant Genetic Resources for theTwenty-sixth Session of the Food and Agricultural Organiza-tion of the United Nations, Rome, November 9-28,1991.Froma joint interview of Jaap Hardon and Simone Bilderbeek,published in M. Ham and G. Dorren (eds.), Rio aan de Rijn,Milieudebattenin Nederlandna UNCED(Utrecht:PlatformvoorDuurzame Ontwikkeling).Declaration of Australia, Austria, Belgium, Canada, Denmark,Finland, Franca, Germany, Greece, Italy,Japan, Malta,Nether-lands, New Zealand, Portugal, Spain, Switzerland, the UnitedKingdom, and the United States of America, made at the timeof adoption of the agreed text of the Convention on BiologicalDiversity, Nairobi, May 22, 1992.

ReferencesMayr, J. (1992). In A.S. Bilderbeek (ed.), Biodiversity and Inter-national Law: Effectiveness of InternationalEnvironmentalLaw.Amsterdam: IOS Press.Porter,G. (1992). 'The United States and the Biodiversity Conven-tion: The Case for Participation."EESl Papers on Environmentand Development, Number 1. Washington, DC.Tewolde Berhan, G.E. (1992). "Conserving and Using BiologicalDiversity:By Whom? For Whom?" Network '92 19:12-13.


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