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The Convention on Biological Diversity or the international construction of a contentious global common1

Diego Alejandro Martínez Ballesteros*

Profesor / investigador de la Facultad de Finanzas, Gobierno y Relaciones Internacionales de la Universidad Externado de Colombia correo electrónico [email protected]

During the 1980s and 1990s many and interventions into the nature. This environmental NGOs and the scientific was portrayed dramatically as the ‘sixth community have stressed the idea of glo- mass extinction’ of forms in bal that were in risk, which (Wilson cited in Boisvert and Vivien was considered the case of the main en- 2005: 463). vironmental problems: loss of biological The problems of the global com- diversity, change, loss of the ozone mons are understood as ‘problems whose layer, and degradation of the marine manifestation might be local or national environment ( 2000, 3). Ecolo- but whose consequences would be global gists declared that species extinction has in scale’. As a result, ‘the costs of inaction greatly increased due to human activities would be global in scope so the responsi-

* Fecha de entrega, 9 de julio de 2006. Fecha de aceptación, 18 de agosto de 2006. 1 Este artículo es un avance del trabajo que desarrolla el autor en el Proyecto “La contribución de los bienes y servicios ambientales en el desarrollo. Consideraciones del debate global para Colombia”, de la línea de in- vestigación “Desarrollo Sostenible”, del Observatorio de Análisis de los Sistemas Internacionales, OASIS.

t e m a s g l o b a l e s problemas ambientales 28

bility for addressing the problems – even Environment and Development held in if its manifestation was highly localized Rio de Janeiro in 1992. – should be borne by the global commu- The underlying terms of the CBD nity’ (Wood 2000, 3). In this perspective, are those of ‘ecological modernisation’, local environmental problems are pre- expressed by Hajer (1995). They are the sented as essentially transboundary that expression of different state and non- require the development of ‘global science’ state actors with a wide array of different to be analysed, international institutions interests and ideological, political and to manage them and the prescription of economic commitments in the global ‘global solutions’ (Goldman 1998: 3-4). economy that claim to have authority The idea of as a global over the . Such actors common implies the conception of a are industrialised states, states ‘rich’ in ‘new’ discourse based on the macro-scale biodiversity or so-called megadiverse, of the environmental problems but, more environmental NGOs, scientific com- important, it also involves the creation of munities, biotechnological and natural new authorities, new forms of valuation -based industries, indigenous and and appropriation. As Saurin highlights, local communities, among others. The the environmental crisis big failure of ecological modernisation as an environmental discourse is that it (…) is primarily a social crisis rather than a ‘does not call for any structural change natural crisis, in the sense that what is at stake are but is, in this respect, basically a mod- the forms and particular processes of accumulation ernist and technocratic approach to the and social reproduction, albeit now on a global scale. environment that suggests that there is More specifically this means that both the processes a techno-institutional fix for the present of environmental change and the explanations one problems.’ (Hajer 1995: 32) provides of those changes need to be understood as This essay is a critique of the con- part of a larger recomposition of social and economic struction of the concept of global com- relations, and of the reconfiguration of political and mons, which fits into the discourse of economic relations on a global scale. (2001: 65-6) ecological modernisation, by using the example of biodiversity and the Con- This perspective may help to under- vention on Biological Diversity. The stand the diverse aspects and non evident understanding of biological diversity as a economic and political implications that global common is very problematic and surround multilateral environmental supposes, with dubious assumptions, agreements, such as the Convention on to have a solution of the environmental Biological Diversity (CBD) that was signed problems through the commoditization at the Conference on of biological . In order to do so, oasis, n°12 29 a legal international framework has been to define and are challenged by constant created. The Convention on Biological scientific debates. Flitner declares that the Diversity is an attempt to: i) re-shape term has been used since the 1980s thanks state and global authority over to a series of publications and events with the multiple forms of biological diversity heterogeneous messages and contradictory including genetic resources and allow to statements from different ethical, conser- some actors gain power and authority; vation, and and ii) facilitate the recognition of bio- perspectives (1998: 145-6). In addition, logical and genetic material as valuable economics discussions on conservation resources for a wider incorporation of were attached to the debate. ‘The new them into the global economy. Although importance attributed to market forces the Convention calls for the preservation in Biodiversity [one of the most influential of the , it also set a framework publication on this topic; Wilson 1988] for a wider appropriation of nature, a mix reflects both the general ideological shift that has proved to be highly contradictory in the 1980s and its material-scientific and conflicting. realization- the new technical possibili- In words of Hajer: ‘the discourse of ties through genetic engineering.’ (1998: puts the mean- 147). Simultaneously, this publication ing of the ecological crisis upside-down: brings different aspects of society-nature what first appeared a threat to the system relations such as ‘’ now becomes a vehicle for its innovation.’ of indigenous people in the biodiversity (Hajer 1995: 32). Moreover, it opens the discourse (1998: 147). door to more adventurous incursions Later, in the 1990s, leading environ- from other international regimes and their mental organisations and the World Bank institutions, for instance world trade and ‘translated’ the discourse into policy pa- development, now with more ‘authority’ pers that elevated the industry, the World on environmental issues. This has been Bank and international conservation or- notoriously the case of the last decade. ganisations as the main actors in preserv- ing biological resources (1998: 148). Now Biodiversity as a global the biodiversity discourse is dominated common by policy experts and economists that clearly expressed a bias towards markets Biological diversity or biodiversity is considerations and suggests that the core a very broad term that includes all living of the problem of biodiversity loss is due things on the Earth, from the genetic level to an inadequate management of these to . Moreover, concepts such as resources from developing countries. In ecosystems or genetic material are not easy words of Swanson (1997):

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It is possible to source biodiversity’s decline in (1995: 3): ‘One of the features of many a single, very broadly stated problem: the failure to environmental problems is that they occur appreciate and to appropriate the values of biologi- in context where there are no owners, or cal diversity. Although many different forms of life where there are owners who have only lim- are endangered in the current phase of decline, and ited “security of tenure”.’ Then, he contin- many different causes are at work, the problem at ues, ‘so it is with global resources like the base remains the same. (1997: 42) atmosphere, the , the , ‘(…) the problem remains that developing and many of the world’s and range- countries do not see these [biological resources] .’ (emphasis added). Next he adds, to be resources on which to build a developed ‘Lack of , or “ rights”, economy. It is this perception of “investment gives rise to neglect and over-use.’ unworthiness” that is the ultimate cause of biodi- The above examples and statements versity’s decline, (…)’ (1997: 43) are very contentious and especially for the case of biological diversity they seem not Moreover, those experts argue that the to apply at all. Why considers this author solutions for the biodiversity problem are many forests and as global in the benefits expected from bioprospect- resources without owners or ‘limited secu- ing. The development of the market for rity of tenure’? Unlike the atmosphere, the genetic resources was ‘presented as the stratosphere and the high seas; forests and pragmatic solution to biodiversity con- rangelands are localised in specific juris- servation.’ (Boisvert and Vivien 2005: dictions of states under different property 466). rights regimes and even in ‘remote’ areas But in which respects is this discourse they might be inhabited by indigenous intermingled with the one of global com- and rural communities. Then, if this is the mons and is reflected in the Convention case, the last statement, probably inspired on Biological Diversity? in the Coase’ theorem and Hardin’s a-his- ‘Global commons’ is a term that is torical abstractions, does not apply either. widely used in the environmental policy Even though this inherent contradictions, literature in order to categorise different the global commons discourse has been types of environmental problems. How- used in approaching biodiversity issues. ever, it is not always clearly defined and The assumption that environmental explained by its users causing confusion problems are problems of the property when different environmental problems structure is recurrent when global com- with distinct characteristics are qualified mons are mentioned. According to Görg under the same term. Then, what are the and Brand, ‘is the view of the market ‘global commons’ and its components? radicals that the problems connected Pearce defines it in the following way with the loss of diversity are caused by oasis, n°12 31 imperfect or politically distorted price other facet of the ‘global commons’ in formation’ (2000: 380) based on a model which property rights are presented at the with problematic suppositions: ‘first, centre of the problem and thus require a the assumption that biodiversity in fact reinterpretation for a solution. Based on does not belong to anybody; and second, different study cases, Goldman (1998) the allegation that it is being destroyed identifies and synthesises the main features because it does not belong to anybody.’ and consequences of the global commons (2000: 381). This is an expression of discourse (see Table 1.)

Table 1. Story-lines of the global commons

a. Environmental problems are global The world is portrayed as highly interconnected and local impacts to the environment have also global consequences. Different perspectives nurture these ideas.

b. At the centre of environmental One that is rooted in utilitarian tradition and problems are the property rights over the idea of the ‘’ nature and/or the lack of that considers that regimes to management and inappropriate use natural resources encourage their depletion of natural resources and thus, private rights regimes or strong state interventions are needed. Other, encouraged by developing experts and ‘global resource managers’ (international development organisations, northern states think-tanks, international NGOs, etc.) propose a centralised management of resources, for example through international agreements.

c. It is necessary to develop a ‘global Certain knowledge is privileged over other science’ and count on ‘global experts’ and it is assumed that science is independent, progressive, value-free and all-knowing. The ‘local’ is a site for data collection and the ‘global’ is a site for knowledge production and dissemination.

d. Global institutions are required For instance, the creation of multilateral environmental agreements, the involvement of the UN and its agencies, the participation of financial institutions and the creation of international environmental founds, is necessary.

Source: author based on Goldman 1998: 1-53.

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Various issues of the Convention statement about sovereignty, all together, on Biological Diversity are central to the imply various transformations: a transi- global commons’ discourse. First, on its tion from a regime of open access to one preamble, the CBD recognises biological in which the access to genetic resources, diversity as a ‘common concern of human- within the boundaries of states, is deter- kind’ that implies a global responsibility mined by states regulations; the valuation to conserve it (Kiss and Shelton 2004: of the components of biodiversity not only 34). In the same vein, the preamble of in terms of intrinsic value (conservation the Convention stresses ‘the importance activities) but in monetary and market of biological diversity for evolution and values (sustainable use) and; the distri- for maintaining life sustaining systems bution of benefits of the use of genetic in the biosphere’. However, originally resources. In addition to be an attempt the term proposed in the CBD was the to regulate the environmental dimension concept of ‘common heritage of mankind’ of biodiversity, the Convention deals with which was criticised and rejected by some critical political and economic issues and states because the belief that it conveys the the re-shaping of property regimes over idea that benefits derived from biologi- biodiversity. As Flitner described, cal diversity should be shared with others (Kiss and Shelton 2004: 36). Second, the (…) the new legal framework can be seen as Convention establishes the states’ sover- a materialization of some of the central elements eign right to exploit their own biological of the biodiversity discourse. It pretends a positive and genetic resources (Article 3 and 15). correlation among the conservation of biodiversity, Third, the CBD has three main objectives; the growth of the bio-tech industry, and the accel- two of them are concerned on economic eration of capitalization and integration into the and distributional issues. The objectives world market of “traditional societies” with their are: i) The conservation of biological di- “undervalued resources”. (1998: 156) versity; ii) The sustainable use of its com- ponents and; iii) The fair and equitable Following the main story-line of the sharing of the benefits arising out of the global commons discourse the CBD can utilisation of genetic resources. be considered as a centralising effort to Therefore, ‘while states have formal regulate the public policies related with sovereignty over the portion of biodiver- biodiversity. Swanson (1999) states that sity within their , there is the the CBD is over all an attempt to centralise countervailing perception that all biodi- the management of global use plan- versity is a part of the common heritage ning. This author considers that ‘there is of mankind.’ (Miller 1998: 181). The a need for a division of functions across objectives of the Convention and the the globe, between lands used primarily oasis, n°12 33 for production and those set aside for 1982, it ‘formally extended the sovereign a diversity of other functions (research rights of coastal states to the vast new area and development, recreation and leisure, of “exclusive economic zones”, estimated knowledge and information).’ (1999: to contain 25 percent of global primary 308). The questions that arise are: whose production and 90 percent of the world’s need is the one that Swanson mentioned? fish catch.’ (IWCO cited in Sand 2004: Who will be benefited from this division 47). Ten years later the Convention on of functions and who will be affected from Biological Diversity ‘in article 15 extended this global centralisation of plan- sovereign rights to the even vaster range of ning? This questions lead to the issues of and animal genetic resources, thereby sovereignty and global authority in the enclosing access to another major chunk of context of the CBD. what had once been considered “heritage of mankind”.’ (Sands 2004: 47-48). The significance of the However, in the case of the CBD the Convention in sovereignty main sovereignty concern was from the and global authority developing countries that considered that the conditions of ‘free-access’ in which The ‘battle’ for the global commons many northern-based industries use their is over power and control of natural re- biodiversity was not equal. In this sense, sources. In words of Goldman: the gain in sovereignty was particularly important for countries with high levels Different social actors fighting for different of biodiversity, which in a great majority property rights: resource-dependant communities are developing countries. As described for sustenance and culturally meaningful practices, by Conca, authority over the control of corporations for and surplus-value natural resources has been historically production and state agencies for revenues and important for state legitimacy: increased – all are fighting for rights to environments on which their power depends. ‘Historically, the ability to control rules of ac- (1998: 2) cess to the environment and natural resources – to define who may alter, and to what extent, which The global commons discourse does specific natural materials, systems, and processes not oppose to the idea of major territorial – has been a central component of state authority sovereignty because it supports the further and legitimacy. Thus the full effects of international appropriation of natural resources in order environmental pressures on state sovereignty as a to avoid the suppose lack of management collective institution cannot be understood without and property. As Sand pointed out for the examining this inward-looking dimension. This is UN Convention on the Law of the Sea in particularly so for much of the South, given the

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legacy of and the orientation of so many enough and that its provisions for transfer Third World political economies toward commod- of might threaten their ity exports.’ (1994: 707) commercial interests.’ (various authors cited in McAfee 2003: 211). Now, more Even more significant for developing than a decade after the signature of the countries is the fact that the Convention CDB, it is evident that coalitions of in- ‘link access to genetic resources to the eq- dustrialised countries and transnational uitable sharing of benefits related to those corporations gain power and authority resources.’ (Diaz cited in ICTSD 2006: trough other international regime, the 1). ‘The CBD proposes a mechanism for trade regime, minimizing and even threat- access to valuable biological resources on ening the ‘gains’ of the CBD for develop- fair grounds, that is, on “mutually agreed ing and rich-biodiversity countries. ‘(…) terms” and subject to the “prior informed what the TRIPS agreement in particular, consent” of the country of origin.’ (ICTSD but the GATT-94 and GATS-94 agree- 2006: 1). In addition, the facilitation ment in general, signify is that “[c]arried of transfer of technology is stressed in to its logical conclusion, it promises the the Convention (Article 16). In similar trade-based dismantling of three decades terms, it should be noted that the Article of global environmental rule-making and 15 also implies ‘(…) to create conditions the selling of important dimensions of the to facilitate access to genetic resources (…)’ global commons”.’ (Conca cited in Saurin (emphasis added). The general idea seems 2001: 79). that there is now sovereignty over genetic Contrary to expectations, ‘the (…) resources but it also implies a responsibil- “green gold” rush did not take place ity and the condition to facilitate access to and the timelines of basing biodiversity genetic resources. ‘Thus, although some conservation policies on a contractual phrases in the convention seem to oppose approach as initially planned should be extensive IPR [ rights] reconsidered.’ (Koo and Wight cited in protection on “living material”, the CBD Boisvert and Vivien 2005: 466). Different favours this approach as it balances IPRs reasons explained why this ‘promise’ have one the one hand and rights to biodiversity not been realised. Boisvert and Vivien on the other.’ (Flitner 1998: 156). mentioned, among other causes, that the However, this set of new rights was pharmaceutical industry, which used to not well accepted by transnational corpo- be the main industry, ex- rations. For instance, ‘(…) biotechnology plored different paths in research and did interests vetoed US support of the CBD not show great interest in bioprospecting on the grounds that its IPR [intellectual the of Southern countries in the property rights] language was not strong last decade (2005: 467). Moreover, the oasis, n°12 35 play-ground of the CBD makes develop- of biodiversity” on the management of ing countries and communities who hold the global commons, traditional forms valuable genetic resources to compete of use and claims are ignored or even ac- with each other, ‘while on the demand cused of contributing to the erosion of side the multinational companies are in diversity.’ (Görg and Brand 2000: 384). oligopoly positions.’ (Boisvert and Vivien This appears to be a paradox, because the 2005: 467). It can be inferred from this CBD and its Decisions recognize other competition and marked asymmetry that, values of biodiversity and ways of living in one hand, coalitions of industry and de- from locals and encourage veloped countries can and are possible in to protect ‘traditional knowledge’, as it the international arena; on the other hand, is stated on the article 8 (j). However, in a developing countries coalition, united by practice governments should make these their condition of ‘megadiverse’, is fragile rights operational and exercise legitimacy because these countries are competitors. In and authority with communities that not Fact, ecosystems and biological resources always recognise this authority or that are shared transboundary, for example, have conflict situations unresolved. in terms of ecoregions, the Amazon, the All the circumstances mentioned Orinoco basin or the Andes are shared by above illustrate how sovereignty is ex- various states. tended ‘on the paper’ but the reality con- Additionally, national institutions straints its exercise. In this respect, Conca and legal frameworks as well as techni- stresses that sovereignty should not just cal capacities to operate nationally the be considered as a ‘norm’ but also a ‘fact’ mandates of the CDB in many develop- based on material and organisational ca- ing countries are still not in operation. pabilities of states: ‘(…) sovereignty looks Governments should make legitimate this inward as well as outward. If finds its basis process for locals such as indigenous peo- not only in autonomy relative to external ples and peasants which are now consid- actors, but also in the state’s jurisdictional ered ‘stakeholders’. These locals do not use power over civil society.’ (1994: 707). the categories of ‘genetic resources’ in their Therefore, ‘sovereignty demands ‘some day-to-day and the significance of biologi- minimal level of social recognition of the cal resources is more than economic value. state’s legitimacy’ as well as ‘a complex These locals in rich-biodiversity countries bundle of state capabilities.’ (1994: 707). rely on natural resources for their subsist- Thus, sovereignty should be understood ence; and ecosystems are attached to social dynamically: ‘(…) we cannot describe and cultural values. ‘With the concentra- in universal terms either the processes tion of political efforts to regulate the rendering states sovereign or the way in global environmental problem of “loss which they may be changing as a result of

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ecological interdependence. Sovereignty tions about biodiversity and has a strong as a global institution changes because of bias to market solutions. This discourse, what happens to different states over time, in one of its main story-lines, justifies an at different rates and in different ways.’ expansion of the control over biological (Conca 1994: 706) resources and the commodification of On the other hand, some non-state biodiversity. Thus, the Convention on actors and international organisations Biological Diversity can be understood as gained authority and influence with an attempt to re-shape state sovereignty the global commons and biodiversity and global authority over the multiple discourse. The issue of conservation of forms of biological resources, and facilitate biological resources was tackled by en- the recognition and valuation of these vironmental NGOs since the 1950s and resources for a wider incorporation into many of them were involved in trying the global economy. The CDB set a mix to shape a world strategy for biodiversity and contradictory legal framework that (Miller 1995: 121). As it was explained calls for the preservation of biodiversity before, some NGOs helped to construct and its wider appropriation. the discourse of biodiversity and global While the global commons discourse commons. Moreover, they have been very of the CBD gives more authority to some active supporting the creation of the CDB actors such as international NGOs and and its implementation. As scientific and international organisations, the gains in international authorities, some NGOs terms of state sovereignty are controversial. advised the World Bank in relation with The extension of sovereignty over genetic the Global Environment Facility (Flitner resources, as a ‘norm’ has proved difficult 1998: 159), the international found that to turn into a real ‘fact’. On the other supports the operation of the CBD and hand, local communities that depend on paid thousands of projects and initiatives biodiversity are relegated in this discourse, around the globe. They are part of the even though their rights seem to be recog- ‘global experts’ that with the institutions, nised ‘on the paper’, they have to adopt the material capacities and resources help to categories and assumptions of the global reinforce the discourse of biodiversity. commons discourse.

Conclusion Bibliography

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Martínez, Diego Alejandro. “The Convention on Biological Diversity or the international construction of a contentious global common”, en Oasis 2006-07, núm. 12, Centro de Investigaciones y Proyectos Especiales, CIPE, Facultad de Finanzas, Gobierno y Relaciones Internacionales. Universidad Externado de Colombia, pp. 27-38.