Recognising Biodiversity Conservation as a “Common Concern of Mankind”: A Legal Appraisal

2.1 Common Concern

Particular issues related to climate, oceans or biodiversity may arise in a specific sovereign territory, but may be of “concern” outside that sovereign territory as well. 7 In these situations, individual States or regions, acting alone, cannot effectively manage such challenges and are not the sole beneficiaries of their efforts to do so. 8 The adverse effects resulting from the degradation of such a common resource can pose a dire threat to the whole global community. Therefore, the concept of “common concern” transcends the boundaries of a single State’s exclusive domestic jurisdiction 9 and makes the identification or addressing of such issues a legitimate issue for international regulation. 10

According to Kiss, the concept of common concern “does not connote specific rules and obligations, but establishes the general legal basis for the concerned community to act”. 11 He felt that the doctrine called for a global responsibility to share the burden and benefits related to common environmental concerns, but that the rights and responsibility of the global community to act in the matter of common concern must be balanced with national sovereignty. Similarly, the State’s exclusive jurisdiction on resources is also subject to the obligations created by international law to assure the common interest. 12

Kiss noted, however, that the concept of common interests shared by the global community may have procedural implications. 13 Under conventional international law, only an injured State can file a claim against the State which caused the injury in violation of international law. 14 But if the common interest is infringed, all States may be considered to have suffered a legal injury; such an obligation is thus designated as obligations owing to all States, i.e., an obligation erga omnes. 15 The view is recognised by the ICJ in its case Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain). 16 This extension of erga omnes to environmental obligations 17 was later implicitly recognised by the ICJ in its advisory opinion in the Legality of the Threat or Use of Nuclear Weapons case. 18 According to that Court,

It can therefore be asserted that under the concept of common concern, States’ obligations towards the global community as a whole may limit national sovereignty and require an effective international response.

In this context, however, the notion of common concern must not be considered as similar to the notions of the “common areas” and “common heritage of mankind”. “Common areas” is used to refer to Antarctica and the high seas (marine areas beyond national jurisdiction), where regulatory action must be international. 20 International law recognises a similar concept where certain resources, such as those on or under the deep seabed, are viewed as belonging to the “common heritage of mankind” by virtue of their location in internationally recognised commons areas. 21

By contrast, the doctrine of common concern is more open-ended as it is equally applicable to environmental concerns arising beyond the jurisdiction of States and within the jurisdiction of individual States. 22 The proper means of addressing matters of common concern can be determined at the global level, i.e., through international cooperation, 23 given that harm to such resources can affect both current and future generations. 24 As common concerns, the modalities of protection and preservation must be formulated at the global level. Such measures, however, must be enforced by national and international institutions. 25

Thus, the key features of common concern of mankind can be outlined as follows:

The concept transcends the boundaries of States’ exclusive jurisdiction over the subject matter and gives a legal basis for international regulation.

According to Brunn e ´ e et al., the notion of common concerns focuses narrowly on specific environmental processes or protective actions, rather than more generally on the natural areas or resources themselves. 27 To do so, the notion focuses upon the essence of what renders a given concern “common”, and then treads gingerly around both common-property regimes and the territorial sovereignty of individual States. 28 In the CBD, for example, it is “biological diversity” that is “common”; and the “conservation of biological diversity” that is the common concern of humankind. 29

To address the conservation of biodiversity as a common concern, the Convention incorporates three key issues:

it recognises and emphasises that nations have sovereign rights over their biological resources, 30 but also notes that such rights are subject to global common interests (i.e., those rights are not absolute); 31

In the context of States’ obligations under the CBD, therefore, “biodiversity conservation” refers to “specific environmental processes or protective actions” 33 which transcend the territorial sovereignty of individual States, and thus represent a common responsibility which States owe to the international community, including the responsibility to develop international regulations and institutions to secure its ultimate objectives.

3.1 National Sovereignty

The preamble of the CBD affirms first that biodiversity conservation is a “common concern of humankind” and thereafter, in operative clauses, the Convention reaffirms that States have sovereign rights over their resources. 40 The emphasis on national sovereignty is balanced by duties deriving both from sovereignty itself and from the fact that the conservation of biodiversity is a common concern of the entire international community.

The CBD sets out detailed responsibilities and obligations of States with regard to biological resources within their jurisdiction. Under the series of far-reaching obligations related to the conservation of biological diversity, it calls on national authorities to develop national plans and strategies, to integrate the conservation and sustainable use of biodiversity into relevant sectoral or cross-sectoral plans, programmes and policies, 41 as well as into national decision-making (Articles 6 and 10). 42

Based on scientific research, the CBD first calls on national authorities to identify essential components of biodiversity and to prioritise which components require urgent conservation measures, or which offer the greatest potential for sustainable use. Processes and categories of activities which have significant adverse effects on conservation and use are also to be identified and monitored (Article 7).

Articles 8 and 9 emphasise biodiversity conservation in two forms: in-situ and ex-situ. For in-situ conservation, Parties are called on to develop a comprehensive plan and call for measures to establish a system of protected areas for the rehabilitation of degraded ecosystems and the recovery of threatened species. They should also make efforts to protect natural habitats and promote the maintenance of viable populations of species in natural surroundings.

The CBD also places an obligation on individual States to adopt incentive measures; and to undertake environmental impact assessments in order to avoid or minimise any adverse effects (Articles 11 and 14). Under Article 15, first recalling the State’s sovereign rights over natural resources, the CBD gives authority to States to determine access to genetic resources.

More detailed provisions on access to genetic resources are outlined in the Nagoya Protocol, a supplementary legally binding agreement addressing the implementation of CBD Article 15. Relevant to sovereignty, Article 5 of the Nagoya Protocol provides that

To this end, it further provides that States must “take measures with the aim of ensuring” that these objectives regarding access to genetic resources and access to traditional knowledge associated with genetic resources are achieved (Articles 6, 7 and 12).

These provisions have little to do, however, with the notion of “common concern”, although they do cover the need to respect indigenous and local communities’ rights and interests over natural resources, matters intrinsically related to genetic resources and traditional knowledge. 43 In this connection, the Protocol requires States to recognise the rights and ownership of indigenous and local communities over genetic resources. It also calls on States to secure the involvement of indigenous and local communities in the benefit-sharing process, so that fair and adequate benefits go to indigenous and local communities.

Article 8 of the Nagoya Protocol requires States to promote scientific research and consider the importance of genetic resources for food security. Article 9 encourages States to adopt required measures to ensure that shared benefits arising from the utilisation of biodiversity flow to efforts linked to its conservation and sustainable use. 44 These are clearly matters of international concern. To secure the effective implementation of the Protocol, Articles 13 and 14 provide the necessary institutional frameworks at the national and international level.

The Protocol also establishes a compliance regime to prevent and respond to future cases of misappropriation of genetic resources or traditional knowledge associated with genetic resources (Articles 15– 17) and to ensure the enforcement of benefit-sharing agreements (Article 18). 45 Articles 15 and 16 call on States to promote compliance with the domestic legislation or regulatory requirements of provider countries by “users” of genetic resources. Article 17 discusses the role of States in monitoring and enhancing transparency surrounding the utilisation of genetic resources. 46 Article 18 discusses compliance and the enforcement of benefit-sharing agreements.

The “key legal implication” of the foregoing discussion is that the recognition of biodiversity conservation as a matter of international “common concern” is very significant. The CBD and Nagoya Protocol set forth duties on individual States that are derived not only from national sovereignty but also from the fact that the conservation of biodiversity is a common concern to the entire international community. To fulfil such duties, national authorities need to develop a partnership with national and local authorities, local and indigenous communities, the private sector and the international community. 47 Moreover, States are also required to develop and enforce national legislation, plans and strategies to secure the common interest of humanity.

3.2 Impact on the International Community

As mentioned above, the notion of common concern underlines the fact that all humans have an interest in biological diversity because it is essential for sustaining life on earth. 48 Therefore, conservation of biodiversity cannot be taken as an exclusively national affair; it is an issue that must be addressed by concerted international action, including the adoption of international legal instruments. Here, States must collaborate with each other and with multilateral organisations 49 to secure global interests. Such collaboration and cooperation are also needed for effective implementation of national measures to conserve and sustainably use biological diversity. 50

The CBD, in its Preamble, emphasises “the importance of and the need to promote, international, regional and global cooperation among States and intergovernmental organizations and the non-governmental sector for the conservation of biological diversity”. To reflect this view, the Convention sets forth various means through which international communities may be able to cooperate and collaborate.

CBD Article 5 requires States to cooperate with other States to protect or conserve areas situated beyond national jurisdiction, and on other matters of mutual interest. Such cooperation can be directly with States or where appropriate through international organisations. Under Articles 12 and 13, cooperation is also required between States or international organisations to promote scientific research, public education, training and awareness. However, as the developing countries have less capability to support scientific research, education and training, developed countries are required to support developing countries through capacity-building (Article 12).

Under Article 16, the CBD notes that States shall provide and facilitate access to and/or transfer of technologies among States, in certain situations. For developing countries, such transfer of technologies shall be provided on fair and most favourable terms. In addition, States are also required to enhance cooperation in technical and scientific issues, especially with developing countries (Article 18), and to facilitate the exchange of information, including, inter alia, technical, scientific and socio-economic research; specialised knowledge, and so on (Article 17).

Under the concept of “common concern”, the issue of financial cooperation is vital. 51 To secure effective regulation for common environmental concern, every State’s participation and engagement is sine qua non. Financial cooperation can secure every State’s participation and engagement in the regulatory regime especially developing countries. 52 The CBD in its Preamble acknowledges that substantial investments are required to conserve biological diversity. It also acknowledges that “new and additional financial resources can make a substantial difference in the world’s ability to address the loss of biological diversity”.

As a result, Article 20 imposes a legally binding obligation on the developed countries to “provide new and additional financial resources through a mechanism to enable developing country Parties to meet the agreed full incremental costs to them of implementing measures that fulfil the obligations of the convention”. To provide such financial support, special consideration should be given to the needs and special situation of least developed countries and small island States. The Convention also stresses that the effective implementation of developing countries’ commitments will depend on how effectively the developed countries meet their commitments on financial support and technology transfer. Under Article 21, the CBD also establishes a financial mechanism (ultimately the Global Environment Facility) to help developing countries fulfil their commitments. 53

More directly calling for international tools, the Nagoya Protocol considers the international aspects of the obligation of fair and equitable sharing of benefits arising from the utilisation of genetic resources. Article 11 of the Protocol seeks transboundary cooperation between States, local communities and indigenous people to conserve genetic resources situated in situ within the territory of more than one State. It also calls for transboundary cooperation to protect traditional knowledge associated with genetic resources and shared by different indigenous communities in different States. To protect such traditional knowledge, however, transboundary cooperation should be undertaken along with the involvement of indigenous and local communities.

Article 22 of the Nagoya Protocol requires cooperation with regard to the building and development of capacity, and strengthening human resources and institutional capacities to secure effective implementation of the Protocol in developing countries (especially in the least developed countries and small island developing States) and countries with economies in transition. The cooperation can be at a global, regional or subregional level, as well as the more traditional bilateral approach. By referencing the CBD, the provision also requires financial cooperation for least developed and small island States. Article 23 calls for collaboration and cooperation in technical and scientific research and development programmes (also referring to CBD Articles 15, 16, 18 and 19). The Protocol also encourages States to develop a global multilateral benefit-sharing mechanism and sets forth its modalities (Article 10).

The “key legal implication” of the foregoing discussion is that the recognition of biodiversity conservation as a “common concern” has significant international impacts. It reduces individual States’ exclusive sovereign rights over natural resources and gives a legal basis for international regulation. It sets forth a balanced global responsibility to share the burden relating to common environmental concerns, under which the key responsibility is to secure cooperation and collaboration among different countries for the conservation and protection of biodiversity. This responsibility is balanced, because the burden is shared, applying the principles of “common but differentiated responsibility” and “respective capacity”. Developed States are required to provide financial and technical assistance for capacity-building in developing countries (especially in the least developed and small island States) so that they can also effectively implement their respective commitments. Additionally, all States bear common responsibilities, including duties of overall cooperation, exchange of information, promotion of scientific research, public education, training and raising awareness. Such cooperation can take place globally, regionally, subregionally or locally and it can be between States or with multilateral organisations.

4.1 Due Diligence

It is now well accepted within customary international law that each State has duties to ensure that activities within its jurisdiction or control do not cause harm to the environment of other States or of areas beyond the limits of national jurisdiction. 55 Thus, States are held to a standard of due diligence with regard to matters of common concern and to avoid transboundary harm. 56 This application of standards is difficult to apply, however, with regard to the conservation of biodiversity, because it is hard to interpret the material content of “diversity” in a manner that is sufficiently restrictive that it can give rise to a precise standard of States’ diligent conduct. 57

Some analysts, however, are seeking to resolve the issue, encouraging negotiating delegations to define and set States’ duty of due diligence more precisely, a practice that will ultimately lead to the existence of a body of standards of expected diligence 58 and clarify the different ways in which such standards apply to particular countries, according to their economic condition and respective capacity. 59

A separate challenge arises with regard to the application of such standards to countries that are not Parties to the regulatory regime in question. For example, how do CBD standards of biodiversity conservation apply to the US (a non-Party in the CBD process)? 60

4.2 Differentiated Legal Duties

In the application of the concept of common concern, the principles of “common but differentiated responsibility” and “respective capacity” are pivotal, because they reflect the expectation that developing States can satisfy the relevant standard of due diligence with support from one or more developed countries.

As noted above, the CBD requires developed countries to provide technical and financial support to less developed States, so that they can implement their biodiversity conservation obligations. The legal interpretation of such differentiated legal duties, however, is not easy. In the matter of technology transfer in developing countries, the legal protection of intellectual property rights is a huge barrier. Although the negotiators of both the CBD and the Nagoya Protocol attempted to address the issue, their solution has not been effective. Financial support paid by developed countries through the GEF 61 may be lower than the actual cost required for biodiversity conservation. 62 At the turn of the century, various experts estimated the amount required to implement some aspects of biodiversity conservation as somewhere between US $500 million and US $27.5 billion, but GEF spending has been between US $140 million and US $310 million. The main commitment of developed countries in the CBD is a general legal duty of solidarity; 63 hence, international actions normally do not (and legally cannot) enforce developed countries’ obligation to increase their payments.

4.3 Enforcement

According to the scholars, effective legal regimes to address the common concerns of humankind can impose costly obligations and restrictions of sovereignty upon States. 64 In international instruments, however, States sometimes neglect the possibility of enforcement of such commitments. Non-compliance mechanisms under international conventions were originally intended to apply to States that fail to fulfil their obligations. The effectiveness of such mechanisms has been limited, due to the fact that the provisions that impose such liability are relatively vague – not concrete enough to be legally enforced. The CBD is an example of this phenomenon. Most of its provisions do not state concrete obligations, using instead words and phrases like “promote”, “encourage”, “shall as far as possible” and “as appropriate” – phrasing that makes the obligations more flexible, less concrete and thus less capable of being legally enforced. 65

Moreover, where it speaks of cooperation, it reflects the fact that States have discretion, which makes these commitments virtually impossible to enforce legally. 66 In one national case, however, the decision notes some basis for moving ahead with such claims, at least in certain circumstances. In the case of Commonwealth v. Tasmania, the Australian High Court stated that such a statement of discretion “only concerns the manner of performance – not the issue of whether to perform or not”. 67 Further effort is needed, however, to determine whether an infringement procedure can be brought against a State with regard to its non-performance of an international cooperation obligation.