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TEXT 5. BIOLOGICAL DIVERSITY AND NATURE CONSERVATION: PROTECTING BIODIVERSITY
National and international law have approached the problems raised by the loss of biological diversity in similar ways. Historically, the starting point was legal restrictions enacted to protect forests and certain species of wild fauna and flora. Special authorizations could be delivered to allow cutting trees in a forest, or for hunting or fishing during specific seasons. Later, norms developed to protect the habitat of wild plants and animals. Finally, conservation of species and of their habitat merged into the broader conceptual framework that calls for safeguarding the genetic heritage of the planet, a new, immense problem extending beyond the dimensions of conservation in its usual sense. Progress towards identification, regulation, and management of processes that adversely affect biological diversity represents one aspect of a shift away from sectoral administration towards an integrated approach to protecting ecosystems.
In most countries today national legislation is largely modelled after international commitments. Parties to international conventions on biological diversity have adopted laws and regulations in order to implement the agreements and create adequate institutions in order to ensure compliance with their commitments.
The use and protection of wildlife traditionally has been considered part of state sovereignty over natural resources. International regulation first became necessary for fisheries because of conflicts between fishermen of different nationalities. The growing exhaustion of marine living resources has made such regulation critical today, and international conventions on the problem are multiplying.
The Convention on Biological Diversity acknowledges the rights of states over genetic resources in animals and plants under their jurisdiction, but creates a complex relationship of rights and duties. On the one hand, authority to determine access to genetic resources rests with the national governments and is subject to national legislation. On the other hand, each party must endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other parties and not impose restrictions that run counter to the Convention's objectives. When access is granted, it should be on mutually agreed terms and be subject to prior informed consent by the party providing the genetic resource, unless that party determines otherwise. Permits may be required; contractual access agreements are an important method by which public and private entities gain access and negotiate a share of the benefits upon a payment of collection fees, royalties or other form of benefit-sharing.
The use of genetic resources raises the problem of intellectual property rights. Institutions in several countries have collected germplasm, mostly of crops, since the 1970s. Gene banks have become a means of protecting the diversity of genetic resources, particularly of plants, but they have provoked issues over safety of the material, ownership, development of national law restricting availability of the germplasm and intellectual property rights over development of new strains. These questions led the United Nations Food and Agriculture Organization to propose a Global System for the Conservation and Utilization of Plant Genetic Resources. The System, in place since 1983, aims to ensure the safe conservation, and promote the unrestricted availability and sustainable utilization of plant genetic resources for present and future generations.
An International Treaty on Plant Genetic Resources for Food and Agriculture (Rome, Nov. 3, 2001) recognizes the sovereign rights of states over plant genetic resources. Its objectives are the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of benefits arising out of their use, in harmony with the Convention on Biological Diversity, for sustainable agriculture and food security. It provides a system of facilitated access to an agreed list of over 60 plant genera, including 35 crops. The list is established on the basis of interdependence and food security. The benefits accruing from the use of the material accessed is to be shared fairly and equitably through a variety of actions. Anyone who commercializes a product that incorporates material accessed from the Multilateral System is obliged to pay an equitable share of the benefits into a multilateral mechanism for use as part of the funding strategy for benefit sharing. There is an exemption for those who make such products available without restriction to others for further research and breeding, although such individuals shall be encouraged to make a payment.
Another important aspect of the protection of biological diversity is the control of the introduction of alien species, which can destroy native ones. Various international and national laws require states to control strictly the introduction of non-native species. The UN Convention on the Law of the Non-Navigational Uses of International Watercourses (New York May 21, 1997) provides that watercourse states shall take all measures necessary to prevent the introduction of species, alien or new, into an international watercourse which may have effects detrimental to the ecosystem of the watercourse resulting in significant harm to other watercourse states. Appropriate penalties for deliberate introduction are to be strictly enforced, due to the potentially disastrous consequences of alien species on an ecosystem.
On the general protection of biological diversity, the European Convention on the Conservation of European Wildlife and Natural Habitats (Bern, Sept. 19, 1979) illustrates some of the main approaches to nature conservation. It distinguishes the protection of species from that of habitats, a distinction reflecting international regulation and most national legislation. The general rules for species protection are different for wild flora and wild fauna. Wild flora species specified in an Appendix to the Convention are protected against deliberate picking, cutting or uprooting, and, as appropriate, states may prohibit the possession or sale of these species. Species of wild animals listed in another Appendix are protected against all forms of deliberate capture and keeping and deliberate killing; deliberate damage to or destruction of breeding or resting sites; deliberate disturbance of wild fauna, particularly during the period of breeding, rearing and hibernation, insofar as the disturbance would be significant in relation to the conservation of wild fauna; deliberate destruction or taking of eggs from the wild or keeping these eggs even if empty; and the possession of and trade in these animals, alive or dead, including stuffed animals and any recognizable part of derivative thereof.