As the eleventh meeting of the Conference of Parties (CoP) to the two decade old Convention on Biological Diversity (CBD) takes place in Hyderabad next week, immediately following a session of the Meeting of Parties to its Biosafety Protocol, the state of CBD begs several key issues to be addressed - issues not on the agenda of the meeting. The treaty had marked a paradigm shift by incorporating the objectives of sustainable use and equitable benefit sharing along with conservation, and was fairly balanced along the North-South divide. However, enforcement of the treaty at the global level has failed to live up to the expectations invested in it. The third edition of the Global Biodiversity Outlook published by the CBD secretariat in 2010 has acknowledged that the CBD has failed to deliver, as shown by a number of indicators.

Although the treaty negotiations had a strong and effective presence of the Group of 77, the years since its coming into force have seen a progressive weakening of G77 in the CBD parlance, which is probably the main reason why the treaty was rendered ineffective, much to the gratification of the US, the only major country that refuses to ratify the treaty for its worry about the treaty’s provisions for equitable benefit sharing for accessing biodiversity, the preferential terms for technology transfer, and so on. In fact, the US could easily have ratified CBD and remained happy about the treaty’s digression from the core obligations of the contracting Parties. For instance, biopiracy remains unabated in spite of two decades of CBD that makes biopiracy an international offense.

Let us look at the trajectory CBD has been led to take vis-à-vis its legal status. The treaty has the unenviable distinction of being challenged by certain contracting Parties themselves, without denouncing the treaty or without attempting to amend the treaty text. The treaty has categorical and legally binding provisions on access to biodiversity and equitable benefit sharing (ABS), yet when the proposal for a protocol on ABS was mooted years ago, the western countries sought the instrument to be legally non-binding.

The ABS Protocol negotiators had overcome this challenge and the Nagoya Protocol on ABS has been concluded, yet the text remains rather incomplete without addressing the compliance mechanism. And when the issue of compliance mechanism came up for discussion at the recently held meeting of the Intergovernmental Committee on Nagoya Protocol, New Delhi, western countries unfailingly raised opposition to the proposed legally binding nature of the compliance mechanism!

Attempts to argue away the legal strength of CBD has been part of an effort to weaken the comprehensive and well balanced treaty that it is. CBD is not a declaration, a statement of principles, an international program or a set of guidelines. CBD does not belong to the genre of ‘soft law’ that these instruments are, as some including the CBD secretariat claim, it is international law (there is no ‘hard law’ as opposed to ‘soft law,’ for the latter is no law at all).

It is a multilateral treaty that the contracting Parties are legally obliged to implement. However, articles committing Parties to ‘endavour to’ or bearing caveat like ‘as far as possible’ are less binding. There are only two issues in the CBD that called for further development in order to take on implementation course: biosafety (Article 19.3) and liability and compensation beyond national jurisdiction (article 14.2). The CBD explicitly states that it does not provide for exemptions.

The CBD was negotiated, adopted, signed, ratified, and came into force in line with provisions of the Vienna Convention on the Law of Treaties which sets the basis for all multilateral treaty making. G-77 had negotiated hard in the CBD formulation committee to reach the final text of the treaty, and if the treaty’s hard negotiated provisions are so easily relegated as legally non-binding, then it calls for the attention of the Parties at the CoP.

A legally binding treaty is put to disuse by straying away into legally non-binding Programs of Work, Strategic Plan, formulation of new and selective targets and so on, and the whole process undermines the fairly clear and categorical provisions of the treaty. It is worth noting that the CoP simply ‘urges’ implementation of the Strategic Plan and it is not binding on the Parties.

The ABS provisions of CBD are categorical and binding. Access to genetic resource is determined by the concerned Party (article 15.1), based on mutually agreed terms (15.4), and prior informed consent (15.5); these provisions are categorical and binding. What is its implication?

An example: according to information released by India’s Ministry of Environment in 2010, over 2000 patents were taken abroad in the preceding year based on Indian genetic resources and traditional knowledge without the consent of the Indian government. This continuing biopiracy is in glaring violation of the binding provisions of CBD, but even then these provisions of CBD are not invoked - either in a civil court in an offending country or raised in a CoP or its subsidiary bodies’ meet. There is no secretariat monitoring of infractions, no CoP reviewing the infractions/non-compliance. Article 15.7 requires Parties to take legislative, administrative and policy measures for benefit sharing, yet in the past two decades the CoP has not reviewed or acted upon the failure of Parties to enact these enabling measures.

Escalating biopiracy, no reduction in loss of biodiversity, continuing alienation of Indigenous Peoples, failure to create several sets of administrative, policy and legal measures required by the Convention remains neglected – all underline the failure in the enforcement of the Convention. The main reason why the CBD, despite being a progressive treaty, has failed to deliver is the sidestepping of the legally binding nature of the treaty. Treaties, even as they are legally binding, are implemented based on the interests of the powerful countries. Nuclear Non-Proliferation Treaty is perhaps the most powerful legally binding multilateral treaty, but its Article VI that calls for the negotiated elimination of nuclear weapons is selectively disregarded even after four decades of existence of the treaty in spite of several UN General Assembly resolutions reminding the Parties of this.

The CoP is expected to “keep under review the implementation of the Convention” but a critical review of the progress/failure in implementing the provisions of the Convention has still to happen in a CoP meet. The CBD’s Subsidiary Body on Scientific, Technical and Technological Affairs is mandated to review the effectiveness of the measures taken in accordance with the provisions of the Convention (article 25.2.b), but SBSTTA has been kept busy producing more and more documents, disregarding the need to review the effectiveness of enforcement of the Convention’s provisions.

Induced by the CBD secretariat, the CoP has been producing a maze of documents assuming that every article of the CBD is to be further expanded instead of implementing and the CoP reviewing the progress of implementation. There are also expert groups arriving at factually unsound conclusions through green room operations, like the CBD Expert Group on Poverty surmising that there is no direct linkage between poverty (alleviation) and biodiversity, a conclusion that millions of forest, fishery-dependent communities will laugh at.

Land tenurial reforms, as has happened in Kerala, will serve the twin purposes of biodiversity enhancement and poverty alleviation, and yet this has not found a place on the agenda of CBD, which is thickly filled with marginal issues. The CBD process also ventures to prompt the creation of unjustified institutions like the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), at the insistence of the French govt, as if the existing numerous institutions are inadequate, and sidestepping the central issue of lack of political willpower for the implementation of CBD to a projected inadequacy of data.

The CBD can nevertheless be rescued. The G77 should cease its fragmentation in the CoP and unite once again as a single negotiation block at least on issues of common concern. The civil society, which has largely remained camp followers, too should introspect and play a vigorous role as watchdogs.

The author is an ecologist specializing in international environmental policy, and was a negotiator in the Intergovernmental Negotiation Committee on CBD that formulated the CBD text. He is a Member of CBD Expert Group on Poverty and Biodiversity and Board member of CBD Alliance, global network of NGOs on CBD issues