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–  –  –

Introduction This contribution examines a particular development within a legal regime, which is concerned with the provision of a global public good. The good is biodiversity, and the inquiry focuses on the processes within and around the Convention on Biodiversity (CBD, 1992) as the principal forum for biodiversity management within an otherwise highly fragmented biodiversity regime (Glowka et al., 1996; McGraw, 2002). 1 The phenomenon which will be looked at is the use of legal, economic, and discursive tools to incentivise the private sector contribution to the goals of the CBD regime, which is seen as the way towards improved action on biodiversity. The approach of exploring the incentives as regulatory tools for a better implementation of the CBD regime is an inquiry into options for improving the provision of a global public good. In this particular case, and indeed very often, collective action problems which are impeding (better) supply of global public goods can be framed as implementation problems that legal regimes have been facing.

Continuing downward trends in the variety of life on Earth, and a declining quality of numerous essential services that humans derive from nature, call for determined action (for recent accounts of the value of ecosystems and biodiversity to the economy, society, and individuals, and the necessity to protect them, see e.g. Secretariat of the CBD, 2010; Kumar, 2010; Brink, 2011). Contrary to its sister regime - the climate regime -, which receives a lot of attention from both the public and the legislators, biodiversity loss is still waiting for the same position among the headlines (see e.g. Ramesh, 2010), and a major legal stimulus to its goals.2 Although no mechanisms similar to those in the climate regime are in place for the goal of conservation of biodiversity, the picture of the latter as a ‘sleeping’ policy field would be unrepresentative. A certain dynamic in the international arena is felt, and it takes some surprising shapes. Governments of countries hosting some of the richest ecosystems in the world are making pledges to stop exploiting them and forgo large revenues from resource extraction; 3 business conferences wind up forming long-term initiatives to prevent further impoverishment of the * (PhD Researcher) European University Institute, Florence.

The purpose of concluding the CBD was precisely to provide a framework for the myriad of conservation agreements in place before 1992 by providing central principles for biodiversity management. For an introduction to the historical setting of the conclusion of the Convention and its structure, see Glowka et al. (1996) and McGraw (2002).

The problem of climate change was met with an array of legal responses, as a consequence of the adoption of the Kyoto Protocol. Among the vast literature on the topic, a comprehensive overview of a variety of responses across the countries is offered by Freestone and Streck (2010, 2005). For an overview of the EU's policies from the perspective of multilevel governance, see J. Scott (2011).

In May 2010, the President of Indonesia, Susilo Bambang Yudhoyono, announced that his country would introduce a two-year moratorium on deforestation. This is part of an agreement reached between Indonesia and Norway, which pledged one billion dollars to partly offset the revenue forgone. The announcement did not go uncriticised: a conservation organisation, Greenpeace, warns that the moratorium does not go far enough; that areas under discussion will cover only a fraction of what is needed, and go barely any further than the existing Indonesian laws (see Greenpeace International, 2010). Another similar initiative was taken by Ecuador to protect its Yasuní National park, which is one of the world’s most biologically diverse areas, and home to several indigenous groups. Under the “Yasuní-ITT initiative”, Ecuador made a commitment not to exploit twenty per cent of its proven oil reserves which are found within the Park. An international trust fund was established by the UNEP and Ecuador to compensate Ecuador’s foregone oil revenues. In exchange for contributions to the Yasuni Fund, certificates will be granted to donors, indicating the amount contributed and the amount of carbon emissions avoided in this manner.

Jerneja Penca

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