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Chapter Two
Characteristics
of Biological Diversity
Conventions
2.1 The Main Traits of the Biological Diversity Conventions
There are many international instruments in the form of resolutions, declarations and conventions that deal with the subject of biological diversity. The conven-tions create obligations for the Parties, and are required to be implemented once they enter into force. They are, in this regard, "hard law", as contrasted to the resolutions and declarations,
which are regarded as "soft law". "Soft law" is not binding in law, though if certainly expresses the spirit that has guided the participants.In the context addressed by this Handbook, the main biological
diversity-related conventions that have provided the fundamental principles of conservation are the fol-lowing:(a) Convention on Fishing and Conservation of the Living
Resources of the High Seas (Geneva, 1958).(b) African Convention on the Conservation of Nature and Natural Resources (Algiers, 1968);
(c) Convention on Wetlands of International Importance
Especially as Waterfowl Habitat (Ramsar, 1971).
(d) Convention for the Protection of the World Cultural and Natural Heritage (Paris, 1972);(e) Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington,D.C., 1973).
(f) Convention on Migratory Species of Wild Animals (Bonn, 1979);
(g) United Nations Convention on the Law of the Sea (Montego Bay, 1982);
(h) Convention on Biological Diversity (Nairobi, 1992).
(i) Lusaka Agreement on Co-operative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora (Lusaka, 1994);
(j) United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/ or Desertification, Particularly in Africa (Paris, 1994).
It has to be emphasised that there exist many other conventions, which also contain the principles of biodiversity conservation; but the ten listed above, by dint of their broad-based global or regional character,
and their centrality in Africa's participation in environmental treaty-making, can rightly claim to provide the vital directions for this continent in biodiversity conservation.Both the United Nations Convention on the Law of the Sea (UNCLOS) and the Convention to Combat Desertification (CCD) are, for the most part, concerned with other objects except that they touch on biodiversity at various points. UNCLOS, for instance, has a much
wider scope, covering the entire legal regime for the seas and oceans; but it also deals with the subject of marine biological resources.The objective of the CCD is to "combat desertification and mitigate the effects of drought in countries experiencing serious drought and /or desertification, particularly in Africa" (Art.2.1). One of the strategies for achieving that objective is "long-term integrated strategies that focus simultaneously, in affected areas, on improved productivity of land, and the rehabilitation ,conservation and sustainable management of land and water resources" (Art.2.2.)
Of broader character, in their conservation strategy, are the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and the 1992 Convention on Biological Diversity. However, the two conventions, between themselves, have certain
significant differences. Whereas CITES is confined to international trade issues touching on endangered species of fauna and flora, CBD has the broadest sweep -that covers all biological diversity, as well as both in
situ and ex situ conservation, all over the world.These conventions, as they deal in different ways with the theme of biodiversity conservation for sustainable development, do provide important reference points and useful practical ideas for wider adoption, at sub-regional as well as regional levels. This is, therefore, a logical starting point for the main part of this Hand-book, in the analysis of the African context of biodiversity conservation, and in the charting out of a possible course towards the sustainable utilisation of biological resources. This treatment will lead towards more specific suggestions on ways of implementing relevant biodiversity conventions at the national level.
It is clear from the above selection of relevant conventions that current biodiversity conservation trends were not well reflected in the treaty law of the first half of the twentieth century. It was not until the late 1950s that biodiversity began to feature prominently in treaty-making; but the real commencement of growth for modern trends in biodiversity conservation law is trace-able to the late 1960s and the early 1970s.
2.1.1. Convention on Fishing and Conservation of the Living Resources of the High Seas (1958)The Convention on Fishing and Conservation of the Living
Resources of the High Seas was one of the four Conventions adopted by the first United Nations Conference
on the Law of the Sea (UNCLOS) (1958). This convention recognised the general right of all States to engage in fishing on the high seas. This right, however, was not
unlimited. The convention also recognised the special interests of coastal States in maintaining the productivity of living resources of adjacent areas of high seas; and coastal states could take unilateral measures of conservation for any stock of fish or other resources
in any areas of the high seas, to maintain the productivity of the living resources of the sea (Arts. 6 and 7). The convention was guided by the principle that the high seas should continue to be a dependable source of food for humankind; yet exploitation using modern techniques had tended to become excessive and to endanger marine
resources. The convention required co-operation between states in conservation efforts.2.1.2 African Convention on the Conservation of Nature and Natural Resources (1968)
The 1968 African Convention on the Conservation of Nature and Natural Resources was adopted under the aegis of the Organisation of African Unity. This convention, in respect of the African region, was a replace-ment for the 1933 London Convention Relative to the Preservation of Fauna and Flora in Their Natural State. The London Convention is essentially an in-situ conservation instrument, being concerned entirely with fauna
and flora and their natural habitat. This convention had been adopted largely at the behest of the main colonial powers, and its main area of operation was the African continent. Its strategy was the creation of protection zones, in the form of national parks and reserves. It
sought to preserve natural fauna and flora in certain parts of the world, and particularly in Africa. The London Convention requires States Parties to establish national parks and nature reserves in their territories (Art.3); to control human settlements in these territories (Art.4); to preserve forest areas and to domesticate economically utilisable wild animals (Art.7); and to regulate hunting and the collection
of species (Art.9). The London Convention is associated with the era of colonial empire. It is the successor to the Convention
on the Protection of African Wild Fauna, which was concluded by the colonial authorities controlling most
of Africa, in London, on May 19, 1900, but never entered into force.
The 1968 African Convention, which incorporated and expanded the principles of the London Convention,
seeks to encourage individual and joint action for the conservation, utilisation and development of soil, water, flora and fauna, for the present and future welfare of humankind, from an economic, scientific, educational, cultural and aesthetic point of view. States Parties undertake "to adopt the measures necessary to ensure
conservation, utilisation and development of soil, water, floral and faunal resources in accordance with scientific principles and with due regard to the best interests of the people" (Art.II). Parties are required to take effective measures to conserve and improve the soil and to control erosion and land use (Art. IV). They are required to establish policies to conserve, utilise and develop water resources, prevent pollution and control water use (Art.V); to protect flora and ensure its
best utilisation, the management of forests, and the control of burning, land clearance and overgrazing
(Art.VI); to conserve faunal resources and use them wisely, manage populations and habitat, control hunting, capture and fishing; to prohibit the use of poisons,
explosives and automatic weapons in hunting (Art.VII). The convention carries protected lists A and B. Spe-cies listed under List A enjoy full protection, while those listed under category B may be taken but only with authorisation (Art.VIII). Strict control of traffic in trophies is required (Art.IX). States Parties are required to establish and maintain conservation areas (Art.X). They are also required to undertake conservation education, and to take ecological factors into account in
development planning (Arts. XIII, IV).The 1968 African Convention was in many respects a futuristic instrument, as it not only incorporated the now well accepted principle of intergenerational equity,
but also carried the basic scheme of species protection that was later (1973) provided for under CITES.
The convention was highly innovative, as it represented an all-round concern for the conservation of biodiversity and its habitat and, in effect, advocated an ecosystem approach to conservation.The fact that the 1968 African Convention has received no more than 30 ratifications (for 53 states) may call for explanations. This relatively early environmental
convention had made no provision for a facilitative financial mechanism, or for a dependable management
structure. The Organisation of African Unity (OAU) Secretariat working in consultation with the United Nations Environment Programme, has recently set up an in-house consultative group to review the convention, with a view to updating it, and aligning it to the
major global conventions such as CITES and the CBD. This action was taken at the behest of a recent OAU
Summit decision.2.1.3. Convention on Wetlands of International Importance Especially as Waterfowl Habitat(1971)
The Ramsar Convention on Wetlands was the first global
instrument to address the conservation of a particular
habitat. It reflected new international legal efforts aimed at conservation by protecting a habitat rather than a
species. The convention's origin was mainly the research activities conducted by a non-governmental organisation, the International Waterfowl Research Bureau.The official name of this convention reflects its emphasis on the conservation and wise use of wetlands primarily to provide habitat for birds. It is to be noted, however, that, over the years, the convention has expanded in scope to cover all aspects of wetland conservation
and wise use. In this regard wetlands are recognised as ecosystems that are highly important for biodiversity conservation and for the well-being of human communities. Thus the treaty has come to be known in common parlance simply as the "Convention on Wetlands" (or the Ramsar Convention).The mission of the Ramsar Wetlands Convention is the conservation and wise use of wetlands through national action and international co-operation, as the means for achieving sustainable development throughout the world. The convention recognises the fundamental ecological functions of wetlands, including biological
productivity and their economic, cultural, recreational and scientific values (including biodiversity conservation). This convention directly addresses the conser- vation of biological diversity. It seeks to secure the maintenance of the ecological integrity of wetlands, and to promote resource development. States Parties are required to designate at least one national wetland for inclusion in the List of Wetlands of International
Importance (Art.2). The designation of a wetland in this respect is governed by eight specific criteria. A wetland should be considered internationally important if it:a) contains a representative, rare, or unique example of a natural or near-natural wetland type found within the appropriate biogeographic region;
b) supports vulnerable, endangered, or critically endangered species or threatened ecological communities;
c) supports populations of plant and/or animal species important for maintaining the biological diversityof a particular biogeographical region;
d) supports plant and/or animal species at a critical state in their life cycles, or provides refuge during
adverse conditions;e) regularly supports 20,000 or more waterbirds;
f) regularly supports one per cent of the individuals in a population of one species or sub-species of waterbird;
g) supports a significant proportion of indigenous fish subspecies, species or families, life-history stages, species interactions and/or populations that are representative of wetland benefits and/or values
and thereby contributes to global biological diversity;h) is an important source of food for fishes, spawning ground, nursery and/or migration path on which fish stocks, either within the wetland or elsewhere, depend.
Due to the centrality of biodiversity conservation in the Ramsar Wetlands Convention, the secretariats of the CBD and the Wetlands Convention have signed a Memorandum of Co-operation and have adopted a Joint Work Plan which recognises that the two treaties have several areas of common interest, especially in relation to inland/freshwater ecosystems and coastal/marine ecosystems. Under the Memorandum of Co-operation, and the Joint Work Plan, the Wetlands Convention is the specialist treaty for matters relating to the conservation and sustainable use of wetlands. The Contracting Parties to the two conventions have, at their respective Conferences of the Parties, recognised the areas of synergy between these conventions.2.1.4 Convention for the Protection of the World Cultural and Natural Heritage (1972)
The 1972 Paris Convention on World Cultural and Natural Heritage is the primary international instrument establishing rules for the conservation of cultural and natural heritage. This UNESCO-sponsored convention establishes a "system of collective protection of the cultural and natural heritage of outstanding universal value, organised on a permanent basis and in accordance with modern scientific methods".
The Cultural and Natural Heritage Convention is based on the principle that "deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world". It seeks to establish an effective system of collective protection of the cultural and natural heritage of outstanding universal value. Parties are required to integrate the protection of their
cultural and natural heritage into comprehensive planning programmes; to set up services for the protection of their heritage; to develop relevant scientific and tech-nical studies; and to take necessary legal, scientific, administrative and financial steps to protect their her-itage (Art.5).
The convention addresses the interests of conservation in terms of the best interests of future generations. It states that "Each State Party... recognises that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage...and situated on its territory, belongs primarily to the State" (Art.4).2.1.5 Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973)
The adoption of CITES in 1973 was the culmination of a process which began in 1960 at the Seventh General Assembly of the IUCN, and IUCN General Assembly Resolution of 1963 calling for an international convention, and a first draft of a treaty formulated in 1964. The United Nations Conference on the Human Environment at Stockholm in 1972 adopted Recommendation 99.3, which led to the convening of a plenipotentiary conference in Washington D.C. in 1973, at which CITES was adopted. It entered into force on July 1, 1975.
The overriding goal of the convention is to ensure that international trade in specimens of wild animals and plants does not threaten the survival of the species traded. Its object is to prevent damage to species of wild animals and plants by trade.
CITES requires that each Party designate one or more management authorities to be responsible for administering the convention, and one or more scientific authorities to advise them on technical issues. Parties are required to adopt domestic legislation which prohibits international trade in specimens in violation of the convention, penalises such trade, and provides for the confiscation of specimens illegally traded or possessed.
The convention classifies species in three categories: Appendix I concerns "all species threatened with extinction which are or may be affected by trade" (Art. II (1)). Appendix II is concerned with (a)
all species which although not necessarily now threatened with extinction, may become so unless trade in specimens of such species is subject to strict regulation in order to avoid a mode of utilisation incompatible with their survival; and (b) other species which must be subject to regulation in order that trade in certain species may be brought under effective control.
Appendix III lists all species which any Party may identify as being subject to regulation within its juris-diction, for the purpose of preventing or restricting exploitation, and as needing the co-operation of other Parties in the control of trade. Based on continuous biodiversity assessments, Conferences of the Parties have from time to time moved particular species from one appendix to another. Appendices I and II are amended (by additions, deletions or transfer between appendices) at every regular meeting of the Conference of Parties. For instance, at the 1997 COP the decision was taken to move the African elephant from
Appendix I to Appendix II, with respect to Botswana, Namibia and Zimbabwe, for certain specified purposes.Implementation of CITES involves two quite different interests: wildlife conservation and foreign trade. Each of these aspects may have its own specific regulatory regime legislation, institutions, procedures etc) within a State Party. There may also be several other laws
applicable to particular aspects of international trade in wild animals, plants and parts and derivatives thereof. Each Party is required to implement the provisions of the convention through domestic legislation.2.1.6. Convention on the Conservation of Migratory Species of Wild Animals (1979)
The Convention on the Conservation of Migratory Species of Wild Animals seeks to protect migratory species in danger of extinction as they migrate across or outside national boundaries. The convention has Appendix I, which carries the list of endangered migratory species for which the range states have to pro-vide strict protection (Art.III); and Appendix II, which contains a list of species with an unfavourable conservation status and which on this score require international
agreements for their conservation or management. Included in Appendix II are those species which would significantly benefit from international co-operation such as would be achieved through an international
agreement. Protective measures for such species include the conservation or restoration of their habitats, and the removal of threats in their way as well as impediments to their movements. Species may
be listed in both Appendix I and II. The CMS provides for a wide range of measures for the protection of migratory species. These include conservation of habitat in particular oceans, freshwater, wetlands, deserts, mountains, etc.2.1.7 United Nations Convention on the Law of the Sea (1982)
The United Nations Convention on the Law of the Sea was negotiated over a period of about two decades. In this process, the subject of fisheries rights and obligations, including conservation, was an important issue. Certain countries (including most of the developing ones) sought an extension of the jurisdictional rights of coastal states over fisheries. Other states proposed a management approach which took into account the migratory characteristics of different species: they urged that highly migratory species should be regulated by international fisheries commissions, and other species be primarily under the jurisdiction of coastal states.
Articles 192-237 of the convention are devoted to the protection and conservation of the marine environment.It also has more specific provisions on the conservation and utilisation of living resources in the exclusive economic zone (Articles 61-68), and on the management and conservation of the living resources of the high seas (Articles 116 - 120).
2.1.8 Convention on Biological Diversity (1992)
The Convention on Biological Diversity seeks to con-serve biological diversity, to promote the sustainable use of its components, and to encourage equitable sharing of the benefits arising from the utilisation of genetic resources (Art.1). Article 3 of the CBD reaffirms the principle of national sovereignty over natural resources. In the period leading to the Rio Earth Summit (1992) there were attempts to characterise biodiversity as the
"common heritage of mankind", but these attempts did not succeed. Had they succeeded, these attempts would have qualified national sovereignty over natural re-sources and implied some kind of collective national ownership of these resources. Instead, the Earth Sum-mit introduced the concept of "common concern of humankind", to underline the significance of the hu-man interest in general without undermining the rights of states over their natural resources. There was a recognition during the negotiation process of the CBD that most biodiversity is in fact located under the sovereignty of individual nations; hence the adoption of the expression "common concern", to imply the common responsibility for biodiversity but without detracting
from the principle of national sovereignty. The convention places upon Parties the duty to con-serve biodiversity within their jurisdictions, as well as outside their jurisdictions in certain cases (Art.4).
States Parties are required to undertake co-operative initiatives in respect of areas falling outside their respectivejurisdictions (Art5).
They are charged with responsibility for the formulation and implementation of strategies, plans or programmes for the conservation and sustainable use of biodiversity (Art.6). The Convention asserts the precautionary principle, which advocates a preventive approach to conservation, as well as the taking of prudent actions even when the best scientific evidence of damage has not yet been received.
States Parties are required to apply environmental impact assessment in respect of projects that are likely to have adverse effects on biodiversity (Art.14). The CBD makes detailed provisions on matters such as: in situ and ex situ conservation; sustainable use of the
components of biodiversity; research and training for biodiversity conservation; public education and aware-ness; access to genetic resources; transfer of technology; exchange of information; technical and scientific co-operation; access to biotechnology and distribution
of its benefits; financial resources and mechanisms; etc.Although it is often thought that the CBD may provide the answer to long-standing difficulties in biodiversity conservation, its provisions still contain problematic issues that African countries must work to resolve at international negotiation fora. One of the most intra-table of these (to be considered more fully in Chapter 5, under section 5) is with regard to the "knowledge, innovations and practices of indigenous and local communities" (Art.8 (j), CBD). The protection of such knowledge, innovations and practices is problematic within the existing intellectual property rights (IPR) regimes. This is so firstly because the rights involved are collective and intergenerational in character; secondly because such rights may not satisfy the criteria for IPR protection under current regimes such as novelty, inventiveness and capability of industrial application.
Such rights are in many cases preserved through oral tradition and this will not lend itself to ready protection under the schemes of modern IPR regimes. African countries, therefore, run the risk of losing their genetic resources to the industrialised countries which then retain and protect these as their own intellectual property; and this would undermine equitable exchanges between donors of genetic resources, on the one hand, and those of technology on the other hand. A possible panacea to this problem is to enact national legislation that institutionalises prior informed consent in respect of genetic resources while at the same time pro-viding some protection to indigenous people with traditional knowledge and medicinal plants and animal extracts. With this arrangement, communities with indigenous knowledge can be granted entitlement to royalties accruing from the use of medicinal plants by multinational pharmaceutical companies. This would also serve as incentive for conservation of biological diversity by indigenous communities.2.1.9 Lusaka Agreement on Co-operative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora (1994)
The Lusaka Agreement aims "to reduce and ultimately eliminate illegal trade in wild fauna and flora and establishes a permanent Task Force for this purpose" (Art.2).
This agreement, which was developed by African States in collaboration
with the United Nations Environment Programme (UNEP), is an expression of the synergistic functioning of the various environmental and biodiversity treaties. The Lusaka Agreement provides a basis for the enforcement of measures applicable under both CITES and CBD and is in fact a regional device for the implementation of the provision of CITES.
2.1.10 United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (1994)
The objective of the convention is to combat desertification and to mitigate the effects of drought in seriously affected countries, especially those in Africa. The convention seeks to achieve these goals through integrated development, supported by inter-national co-operation and partnership arrangements in the relevant countries. It lays emphasis on long- term strategies focussing on improved productivity of the land, the "rehabilitation, conservation and sustainable management of land and water resources, leading to improved living conditions, in particular at the community level" (Art.2.2).
Lands previously productive and supportive of life tend to become desertic, largely due to uncontrolled human activity. Combating desertification entails putting in place soil and water conservation measures aimed at regenerating the life-supporting capacity of these ecosystems.The convention gives centre stage to Africa in its overall scheme of implementation. African States Parties are to be accorded special consideration in the rendering of different kinds of support, for action programmes implemented under the Convention. The convention includes both an annex on regional implementation for Africa, and a resolution on urgent action for Africa