Coral reefs and the conservation of biological diversity

5  Coral reefs and the
conservation of
biological diversity

1 Introduction

Biological diversity, commonly shortened to biodiversity, is the term used to describe the prolific variety of life on earth in all its forms and at all levels.1 Three main groupings of diversity can be identified, namely organismal, genetic and ecological. The first – organismal diversity – relates to the differences within the various levels in the taxonomic hierarchy, such as diversity amongst species. By way of illustration, seven species of sea turtle exist, including the hawksbill and green turtle. The sheer scale of species diversity, however, is difficult to quantify. Scientists have identified 1.75 million species although they suspect that the number of species actually inhabiting the earth may be closer to 13 million.2

A single species can demonstrate great genetic diversity, which may only manifest itself to human eyes in physical attributes. An example of recent research helps to understand genetic diversity. In a test tube containing a nutrient-rich broth, geneticists Paul Rainey and Michael Travisano of Oxford University, demonstrated that within seven days a single species of bacteria, Pseudomonas flourescens, can morph into three distinct forms, described as smooth, wrinkly spreader and fuzzy spreader.3 This diversity was linked to the varied environmental conditions within the test tube; oxygen levels and physical conditions throughout the tube were not constant.

The variety of environments within which diversification occurs is also, therefore, included within the concept of biological diversity. Hence as the third group, it is necessary to appreciate that biodiversity also refers to the many different ecological environments that may occur on the earth, as well as appreciating the significance of this diversity in driving genetic and organismal diversity. As the test tube demonstrates: ‘It’s the variety of environments – the surface of the broth, the vial’s edge, and the bottom – that maintains the diversity. And that’s true for the biodiversity of the natural world as well.’4

Whilst the expansion of life on earth to fill the various niches that became available has continued over the last 4.5 billion years, it is thought that speciation and extinction rates are now at best in equilibrium, meaning that the quantity of biodiversity may not, for the time being, increase beyond current levels.5 In this sense, biodiversity may be regarded as a non-renewable resource.6 If elements are destroyed, the results of evolution cannot be reproduced. The great concern is that, whilst in the past extinction rates have been driven by forces extrinsic to life on earth (e.g. continental drift and climate change), it is now being driven by life itself; more specifically humankind.7 Such anthropogenic drivers are now becoming so great that humankind is believed to be causing an extinction rate 100 times greater than ever before.8

Pollution and the introduction of alien species by humans have had catastrophic effects upon species and habitats. The impact of land-based sources of pollution upon coral reef ecosystems, for example, has already been discussed in earlier chapters. Examples of the harmful effects of invasive alien species can also be found from around the world. In 1974, the first hedgehogs were introduced to South Uist in the Outer Hebrides in Scotland in order to control garden pests – just four animals in total. By 2002 the hedgehog population had grown to 5,000 and had spread across all of the Uist islands. As a result, local populations of sea birds dwindled as the hedgehogs ate the birds’ eggs.9

Habitat destruction is also a major cause of biodiversity loss. Whether it is the destruction of rainforests or the dynamiting of coral reefs by fishermen, the knock-on effect for species and also for genetic diversity is easy to predict. When Paul Rainey and his colleagues regularly shook the test tubes containing the Pseudomonas flourescens, the destruction of the variety in environments into one homogenous broth significantly reduced the diversity.10

It was with these concerns in mind that the Convention on Biological Diversity (CBD)11 was negotiated and ultimately opened for signature in 1992 at the Rio de Janeiro United Nations Conference on the Environment and Development (UNCED).

2 The Convention on Biological Diversity: from early beginnings to signature12

In the late 1980s, threats faced by biological diversity were being tackled by some MEAs, albeit in a piecemeal fashion via regimes to protect particular species or habitats. Many of these regimes will be considered in other chapters, such as those dealing with wetlands, natural heritage and international trade in species.

Such efforts made useful contributions to the conservation of biodiversity, but taken together did not offer universal coverage and significant lacunae were felt to exist. In 1981, the IUCN started work building support for, and drafting, a global conservation treaty for biodiversity. Their draft convention’s development was subsequently overtaken by the UNEP negotiations that led to the finalising of the CBD text, although the draft nevertheless acted as a basis for early rounds of intergovernmental meetings.13

The text of the CBD, which will be considered in the following section, has been heavily criticised. Blame for this has been apportioned, in some circles, to the rushed nature of the negotiations.14 Indeed, the United States issued a declaration at the conclusion of UNCED criticising the text because certain issues were not fully considered ‘because of the haste with which we have completed our work’.15 Indeed there was some pressure to complete the negotiations in time for UNCED, and states only had eight separate occasions over a four-year period to negotiate an agreeable text.16 This might well be thought of as a short timeframe given the complexities of negotiations for such a far-reaching convention.

Whether timing had negative consequences or not, the final text can be criticised for compromises that had to be made to accommodate fundamental differences in the negotiating positions adopted by developed and developing states. The negotiations were highly politicised and tensions persist to this day.

Whilst biodiversity has a basic ‘life-support’ function that is significant to the entire international community, its value tends to be greater to developed nations. This value may be attributed by pharmaceutical companies with the resources to research and unravel nature’s bounty, or by voters who value natural beauty and who, in the 1980s, were appalled at the mass destruction of rainforests. However, most of the biodiversity so valued by the developed world lies within the sovereign territory of developing countries. In these states, subsistence and the pursuit of development comparable to that already achieved by the developed world often comes ahead of environmental considerations. Consequently, with biodiversity conservation accorded secondary importance in developing countries, this was a classic example of the richer countries wanting the poorer countries to provide a service.

With such a commanding position, developing countries saw the CBD negotiations as an opportunity to restructure global economic relations in order to further their own development needs.17 Developing countries therefore required that in return for conservation efforts on their part, there should be compensation mechanisms with respect to biological resources ‘discovered’ by foreign bioprospectors within their territory and subsequently developed into products. They also wanted access to these products on favourable terms. Developing countries also wanted their right to continue using biodiversity (albeit in a sustainable fashion) recognised. Any forbearance in this regard through the imposition of conservation obligations would require direct financial support from developed countries.

Provisions for compensation and greater access to technology were not novel. Similar mechanisms for technology transfer and funding support had already been included in the international regime for protecting the ozone layer.18 However, in that instance, such provisions were included only as part of ensuring compliance.19 In the negotiations for the CBD, however, developing countries were looking for economic benefits in their own right. Given that they broadly achieved their aims, the CBD represents a new departure for MEAs.

Whilst such demands proved to be unacceptable to US policy, other developed states were willing to negotiate on these terms. However, balancing the two positions was always going to be difficult given certain other (external) factors. These ranged from the UN’s desire to complete the convention text in time for the forthcoming UNCED, to parties bringing grievances from the multilateral negotiations on climate change into the biodiversity forum. As Veit Koester notes, ‘many developing countries . . . felt that the climate change solution had been imposed upon them by the North. They were therefore determined more than ever, to obtain what they in reality desired from the CBD.’20 These politicised events must be kept in mind when considering the provisions of the final text of the convention.

3 The CBD’s conservation provisions

The text as adopted and opened for signature at UNCED in 1992 represents a compromise between the visions of developed and developing states.21 The result is a convention that departs from purely conservation-based objectives, to covering the sustainable use of biodiversity’s components, and the fair and equitable sharing of the benefits arising from the use of genetic resources.22

Whilst the importance of linking conservation and sustainable development had been recognised since at least the Brundtland Commission’s report of 1987,23 the new departure was the inclusion in Articles 15–19 of provisions on access to genetic resources, access to and transfer of technology, exchange of information, technical and scientific cooperation, and finally the handling of biotechnology and distribution of its benefits. These provisions were effectively the price developed countries were asked to pay for the cooperation of developing countries in undertaking conservation measures.

These provisions will not be explored in detail in this study as they are not directly relevant to the conservation of coral reef ecosystems. The exceptions to this, however, are those parts of the convention concerned with finance. Despite being included in the latter sections of the convention, these will be looked at first. This is because according to some interpretations these provisions amount to a condition precedent to the fulfilment of conservation obligations by the most important group of states from a coral reef perspective. This section will then proceed to consider the jurisdictional scope of the CBD, relevant underlying principles and objectives, and finally the conservation obligations themselves.

3.1 Finances

Implementing new conservation obligations was always going to place a strain upon the resources of developing countries. At the time of UNCED it was estimated that the cost of implementing conservation measures for biodiversity would be about US$3.5 billion per year and of that US$1.75 billion would need to come from the international community by way of gifts or loans on concessional terms.24 Some form of mechanism for ensuring a flow of finances to developing countries in support of their efforts to meet conservation objectives was therefore required. Articles 20 and 21 look to satisfy this demand and the manner in which they do so is of particular significance from a number of perspectives.

First, Article 20(2) states that developed country parties25 are obliged to provide new and additional financial resources. This dedicated pool of money is to be made available to developing countries for meeting the ‘full and incremental costs . . . of implementing measures which fulfil’ their obligations under the CBD, including conservation and administrative requirements.26 The quantum of these full and incremental costs is to be agreed between a developing country and the designated body operating the financial mechanism agreed upon at a Conference of the Parties (COP).27

Article 21 states that the finances provided will be managed by an institution under the ultimate authority of the COP to the CBD. Whilst originally appointed only up until the first COP in 1994,28 the Global Environment Facility (GEF) remains the chosen institution responsible for operating the mechanism. It is, however, for the COP to determine the policies, priorities, criteria and guidelines for ultimate allocations of resources.29

Finally, Article 20(4), which is of particular importance, says:

The extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology . . .

The interpretation of this article is, however, problematic.

3.1.1 Interpreting Article 20(4)

One widely held view is that this provision establishes a precondition to developing countries having to perform the obligations imposed upon them under the convention. Thus, Cyrille de Klemm and Clare Shine state that a failure by developed countries to provide financial and technological resources means that ‘developing countries are considered by the Convention as no longer bound by their conservation obligations.’30

However, contrary interpretations have also been advanced. Melinda Chandler, who acted as one of the US legal advisors during the CBD negotiations, suggests that Article 20(4) is simply a statement of factual reality.31 She notes that, at the start of the final negotiating session, wording supporting a precondition approach to financial and technological provision was proposed as a clause following the conservation obligations, but that this was specifically rejected.32

Fiona McConnell’s account of the final negotiations in the office of the Executive Director of UNEP may shed additional light on the debate, as she records that:

To balance the acceptance in [Article 20(1)] that all countries were subject to some financial obligations, the G77 members exacted a counter clause which implied that the developing countries would only be expected to implement the convention if they received the necessary finance and technology.33

Whether expectation is the same as an obligation is debateable, but it is clear that the convention lacks the type of drafting that would have reflected an intention to create a precondition to the imposition of a conservation obligation.34 This would have been easy to achieve, and was, according to Chandler, duly proposed in the draft treaty text.35 Further, Article 20(4) only suggests that the extent (i.e. degree) of compliance, not the duty to comply, turns upon financial and technological support from developed countries. Therefore, to say that developing countries are no longer bound by conservation obligations if developed parties do not transfer money and technology to them requires wording that simply does not exist in Article 20(4).

Conversely, Chandler’s viewpoint that one is simply dealing with a statement of practical reality if funding and other support is not forthcoming seems odd. Article 20(4) was negotiated for inclusion in the substantive legal sections of the treaty, rather than the preamble, and as such must be interpreted so as to have some form of legal meaning.36

It is therefore difficult to determine the matter conclusively either way37 although the author’s preferred interpretation does not lie with that of the article being a precondition. This stance is also based upon an alternative interpretation that would still give a legal meaning to Article 20(4). The article could simply be seen more as a reflection of the principle of international environmental law that states have common but differentiated responsibilities.

Under this principle, all states are believed to share common obligations to protect or conserve a particular part of the environment. In the case of the CBD, this flows from the perceived common concern of mankind in biodiversity. However, international environmental law regards certain states as having greater responsibility for creating a problem, whilst others have lesser capacity to reduce or control a given threat to the environment. This latter consideration may manifest itself in MEAs in the form of delayed or less stringent commitments for particular states.38

As Alan Boyle notes,39 the principle of common but differentiated responsibilities permeates the CBD through the use of qualifiers to obligations such as ‘as far as possible and appropriate’. Article 20(4) could therefore be interpreted as an extension of this principle and as a mechanism for determining its operation. Thus the starting position is one where all parties are unconditionally subject to the conservation obligations but to a standard set in accordance with differentiated responsibility principles. Article 20(4) then provides a mechanism whereby levels of responsibility, and therefore expectation, may be adjusted through the provision of financial and technological support by developed states.

Clearly, it is difficult to decide upon a definitive interpretation of Article 20(4) and in practice developing states are seeking to meet their conservation commitments. Whether such action is being driven by developed countries providing financial and technological support is the next issue to be considered. After all, whatever the possible legal implications of lack of financial and technological support, the practical impacts upon the effectiveness of any programmes for conserving coral reef ecosystems under the CBD will remain.

3.1.2 The provision of financial and technological support

Tentative observations can be made about the actual provision of new and additional finances. Abdul Ansari and Parveen Jamal cite a 1996 Birdlife International report as suggesting that pledges and donations to the GEF were (in the late 1990s) below the annual figure needed to meet conservation demands, and that such contributions were not new and additional, being less than that which had been provided before the CBD was agreed.40 Developments since would suggest only limited progress. GEF contributions increased over the subsequent replenishment periods but have since stabilised at around $3.3 billion for each four-year period.41 Whilst this amount appears to be an increase from the years before the CBD, the annual amount available falls short of the earlier mentioned estimated annual costs of conservation calculated, particularly when adjusted for inflation.42

It is such shortfalls in funding that continue to concern conservationists. For example, in the lead-up to COP7 of the CBD, which was due to be held in 2004, the Royal Society for the Protection of Birds (RSPB) called for a mechanism to be put in place to ensure funding pledges were kept, and that specific commitments to provide adequate levels of financing should be made to implement convention initiatives, which in this instance referred specifically to the plan to establish a network of protected areas that was projected to cost £14.5 billion per year.43 Less than two weeks later, the RSPB’s frustrations at the failure of contracting parties to make any commitments to finance a protected areas plan were evident in a follow up statement:

As expected, governments are in total denial about money. In this respect, we can see the hidden dark hand of the developed world’s treasuries at work. So disinterested are they that finance officials have not even bothered to turn up [to COP7]. Yet they remain content to sabotage the future of global biodiversity, ensuring the money needed for protected areas is still not available.44

Whether or not deliberate attempts to sabotage progress in conserving biodiversity are really being made by government treasuries, it is clear that biodiversity initiatives (such as a protected areas network) are expensive exercises and therefore suitable mechanisms and commitments with regards to money and provision are required.

3.1.3 Summary

As developing countries indicated from the start, the reality is that their ability to meet conservation obligations turns upon suitable aid, capacity building and the transfer of technologies. In the politicised cauldron of CBD proceedings, shortcomings in these areas also provide motivation for obstructing other areas of CBD work. Articles 20 and 21 are therefore key to the successful implementation of the CBD and its programmes of work. In this way, any initiatives under the CBD to promote the conservation of coral reef ecosystems similarly depend upon the same provisions. Whilst it is not believed that they amount to a condition precedent to the imposition of obligations upon developing states, the importance of these articles is clear. Current concerns about inadequate support therefore need to be resolved.

3.2 Jurisdiction and coverage

The CBD defines biological diversity as ‘the variability among living resources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.’45 A number of points can therefore be made with a bearing upon the coverage or scope of the CBD. First, recalling the opening of this chapter, the definition used by the contracting parties reflects the various levels in which biological diversity occurs.46 Second, the definition tackles the concerns over lacunae in international environmental legal protection by being wide enough to include all habitat types and species of flora and fauna. Third, and following on from the second point, biological diversity is drafted in such a way as to include corals, coral reefs and coral reef ecosystems. This latter point is not without significance given the question marks that exist over the definitional clauses under other MEAs looked at in this study and their ability to include coral reef ecosystems within their remit.47

Such an all-embracing jurisdiction, unfortunately, also brings difficulties. The concept of biodiversity, which has been so faithfully incorporated within the CBD framework, covers all forms and aggregations of life on earth, from the rare Spix’s macaw of Brazil, to the common starling in Britain, and from the prairies of MidWest America, to prairie planting schemes in domestic back gardens. In contrast to relatively focused conventions infused with urgency in order to protect particular threatened species or habitats, the CBD is faced with such wide responsibilities that it could be forgiven for not being able to tell the ‘wood from the trees’ when trying to decide what it should be doing. If one adds in the fact that the CBD is not just about conserving biodiversity, but also controlling alien species, establishing a framework for intellectual property rights in biodiversity, and taking steps to regulate the use of genetically modified organisms, its agenda runs the risk of becoming unmanageable without rigorous priority setting. As Chris Wold believes, this has led to unfortunate consequences: ‘this sweeping agenda is far too ambitious . . . The Parties have opted for an annual “issue”, but the perpetually crowded agenda at Conferences of the Parties makes the previous year’s issue “last year’s model”.’48

Thus, Wold suggests, particular issues are developed at a COP, but receive little attention thereafter as the CBD identifies its next ‘pet’ subject. Whether this remains an entirely accurate description is open to question, for as will be seen in the later discussion on marine and coastal biodiversity under the CBD, work often continues in working groups outside of the plenary forum.

However, it is possible to detect preferred issues at COPs; a phenomenon that seems to be the result of the CBD needing to spend time ‘finding its feet’ in terms of establishing its mission statement, policies and programmes for given issues within its mandate. Given the burden of the wide scope of the convention referred to, this has taken precious time. Consequently the next important step is to turn the focus from policy formulation to implementation.

That same wide scope also means that the CBD’s mandate often strays into areas already covered by other MEAs. This has consequences as to which treaty takes priority in law (a subject that will be looked at later) whilst in more practical terms this also raises the spectre of duplication of efforts and inter-regime competition for responsibility. The natural solution seems to be that, with the CBD already faced with such a vast range of issues, it would pay to leave primary responsibility to these existing regimes in most situations. This would not only help in managing the work load noted in Wold’s study, but also reduce likely conflicts and duplication.

Turning away from the definition of biological diversity, the CBD goes on to clarify its geographical jurisdiction. As Chandler identifies, such jurisdictional clauses are often determined in accordance with particular habitats, species listed in a schedule, or designated areas.49 The CBD adopts a more general approach through reference to biological components, and processes and activities. As to the former, Article 4 applies the provisions of the convention to components of biological diversity within the boundaries of a state’s jurisdiction. As noted earlier in this study, the 1982 Convention on the Law of the Sea establishes that states have jurisdiction over living resources up to 200 nautical miles from their coastlines. The CBD therefore applies to corals and coral reef ecosystems, as components of biodiversity, in a state’s territorial waters and EEZ.50 Further, processes and activities carried out under a state’s jurisdiction or control are also caught by the CBD’s jurisdiction whether carried on within national boundaries or beyond such limits.

The final element with regards to jurisdiction and remit is the geographical coverage of the CBD in real terms judged by the number of contracting parties. More particularly from the point of view of this study, it must also be asked how many states are parties to the convention in which coral reef ecosystems are found.

The CBD is noteworthy for the number of parties who have become contracting parties: 167 states signed the treaty and the vast majority proceeded to ratify the convention. A few subsequently acceded to the agreement, such that at the time of writing, 193 states are parties to the CBD.51

As is evident from Appendix I to this study, this means that the number of coral reef endowed states who are parties to the convention is also healthy. Thus all of the eligible states endowed with coral reefs52 are contracting parties, with the sole exception of the United States. This total represents nearly 98 per cent of global coral reefs. This places the CBD in the strongest position for influencing coral reef conservation in comparison to the other MEAs that have been or will be considered in this study. Of course, bringing the United States within the regime would offer a significant increase in coverage (an extra 1.3 per cent). This may not be a realistic possibility in the light of that country’s position with regards to the convention and its provisions on biotechnology, IP rights and access to technology. Fortunately, the United States still takes something of an active role with regard to biological diversity as it follows developments under the CBD and often attends COPs. Indeed, as Mary Davidson notes, ‘Even though the United States has not ratified the CBD, some members of Congress are applying its principles to preserve coral reefs.’53

In summary, it can be seen that the CBD is drafted in such a way so as to include corals, coral reefs and coral reef ecosystems, and that the geographical coverage over these habitats is particularly favourable. Of course, the wide scope and number of parties throws up particular problems, namely establishing and running such a wide agenda, managing external relations with other MEAs and garnering consensus among so many contracting parties in what has historically been a highly politicised negotiating environment. To that extent, the CBD is in danger of becoming a victim of its own success regarding the level of membership it has achieved and responsibilities it has acquired.

3.3 Principles, objectives and conservation obligations

3.3.1 Principles and objectives

The opening part of the treaty establishes the CBD’s principles, objectives and obligations, the majority of which are relevant to the conservation of coral reef ecosystems.

The preamble to the CBD justifies international measures on the basis that biodiversity is ‘a common concern of mankind’; a notion discussed at length in chapter 2. The CBD serves as a clear illustration of the significance of common concern as a justification for the international community’s involvement when natural resources amount to sovereign property and where in most cases cross-border problems may not be an issue.

Such justification, as was mentioned, does not alter the fact that biodiversity remains a sovereign resource of contracting parties, and this is reinforced as a consistent theme in the convention text. As has already been pointed out, this was a particular concern for developing countries. Thus, the preamble follows the statement of common concern with a reassertion of the fact that states have sovereign rights over their own resources. This is then carried through into the operative parts of the convention and into Article 3 whereby ‘States have . . . the sovereign right to exploit their own resources pursuant to their own environmental policies’. Also, Article 15 provides that each state has the authority to control access to genetic resources.54

Moving on to the CBD’s objectives, Article 1 sets these out as the conservation of biodiversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising from the use of genetic resources, which includes access to genetic resources and technology transfer.55 With the conservation objective so generally defined, the text of the CBD then proceeds to provide greater detail on the obligations of the contracting parties as part of this goal.

3.3.2 Conservation obligations: general observations

Article 6 expands upon Article 1, by establishing the ‘General Measures for Conservation and Sustainable Use’. Under this article, contracting states must ‘in accordance with [their] particular conditions and capabilities’ produce new, or adapt existing, strategies, plans or programmes for conserving biodiversity and using it in a sustainable manner. The conservation of biodiversity and its sustainable use should likewise be integrated with relevant sectoral plans, policies and programmes.

Article 6, therefore creates an obligation capable of being monitored by the international community, i.e. the production (or adaptation) of these policies, strategies or programmes. These are commonly referred to as National Biodiversity Strategies and Action Plans. The same can be said for Article 7; another provision giving greater detail on the conservation provisions under the CBD. Under that article, contracting parties must, so far as possible and as appropriate:

(a)   Identify components of biodiversity important for its conservation and sustainable use;

(b)  Monitor the components identified in (a), in particular those requiring urgent conservation or identified as offering the greatest potential for sustainable use; and

(c)  Identify processes and activities that have or are likely to have a significant impact upon the conservation and sustainable use of biodiversity, and monitor their effects.

Parties are expected to maintain and organise such data, although the form this should take is left to their discretion. Further, in identifying components of bio-diversity under (a), parties are guided by CBD Annex I, which suggests, inter alia, that particular regard should be had to ecosystems and habitats that contain high diversity, large numbers of endangered or endemic56 species, or which are of economic value. Annex I further provides that at the species level, particular regard should again be had to, inter alia, threatened or economically valuable species or communities.

There then follow the most detailed articles on conservation and sustainable use. These provisions include ex-situ conservation measures such as captive breeding programmes,57 research and training,58 public education programmes,59 and community involvement in conservation initiatives.60 Of particular note (given their claimed significance for delivering effective conservation of coral reefs) is the call for the creation of protected areas.61

One important point arising from the aforementioned articles relates to the focus upon mechanisms at state level for conserving biodiversity and its sustainable use. This, as was noted earlier, was the preferred foundation for the convention during the negotiation phase. Thus, for example, an emphasis can be detected upon national policies and programmes but not upon international initiatives – e.g. obligations centred around international lists of priority habitats and species, or international registers of protected areas. This is not to say that attempts were not made to include such mechanisms.

Throughout negotiations for the convention, developing countries were keen to reassert their sovereignty over natural resources. They were therefore eager to keep the rest of the international community at arm’s length from management of their natural resources. This attitude seems, in turn, to have been ad idem with some developed countries’ approaches to conserving biodiversity, which laid emphasis upon national implementation alone.62 Unlike other MEAs considered in this study, this meant rejecting as incompatible any attempt to establish a system of global lists of either protected areas or priority species and ecosystems; a strategy favoured particularly by France. This position was maintained by developing countries throughout the final round of negotiations, and, as McConnell describes, whilst France allowed the issue to be put on hold in order to proceed with other matters, the subsequent failure to re-open the topic by the chairmen led to ‘entirely undiplomatic exchanges’.63 France ultimately made a forthright declaration at the conclusion of UNCED:

France expected practical and sound provisions to strengthen the conservation of biodiversity. Such provisions are few and too vague. In this respect, it seemed to stand to reason to include a provision existing in several conventions . . . in a convention on biological diversity: we refer to global lists. France regrets that the manner in which the text of the convention was adopted did not allow it to make a compromise proposal on the question of the global approach to biological diversity.64

As seems clear, the decision to omit lists was based upon the central role given to national implementation in meeting the CBD objectives, which in turn came from the assertion of national sovereignty over resources. This national focus may make some sense. It is at the national level that the real work for conserving biodiversity will be undertaken and policies are arguably more likely to be implemented and accepted if formulated nationally – and preferably at community level.65 Further, the future inclusion of lists under the regime is not ruled out in the text and remains a possibility. For example, some form of list could be introduced through a subsequent protocol.

Nevertheless, there is much to be said for global lists, particularly if it is recalled that MPAs are a key strategy for conserving coral reefs. Conservationists are generally concerned that there are not enough MPAs being designated and that those that have been created are no more than ‘paper parks’ in practice.66 Listing mechanisms can help alleviate these concerns. They are a very transparent way of monitoring progress and commitment for creating enclaves, and thereby a mechanism for gently coercing states into action. They also offer international recognition and status, which can be exploited for commercial benefit, giving enclaves greater economic importance. International recognition might also deter decision-makers from pursuing development in or around a particular site given the greater possibility of public condemnation for such a high-profile property.

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