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Earth; 4 non-governmental conservation organisations are partnering with companies which they used to criticise, 5 and these same companies also accept to follow guidelines for their conduct; 6 pilot projects are being run to protect large areas of tropical forests in exchange for money, 7 and a similar mechanism is being discussed, aiming at the conservation of other ecologically significant areas.8 The storyline of these initiatives is (an attempt at) a direct correlation between protection of biodiversity and economic benefit, in an arrangement that crosses borders of nation states. Considering the biodiversity management of the past, these are unusual occurrences. Conservation was an activity from the margins of international politics, and to a large extent dissociated from the participation of businesses. A principal treaty regime placed the expectation for the realisation of its objectives (CBD, 1992, Article 1: ‘the conservation of biodiversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources’) almost entirely on states’ parties, and their ability to enact state legislation. There is a strong international component in the ecological and economic realities of the biodiversity problem. It is marked by an unequal distribution of biodiversity and financial wealth, with nevertheless (or precisely because of these differences) a common interest in preserving the former. These imbalances are implicit in the very establishment of a regime. Yet, the international or transnational (highlighting the private sector involvement) component was weakly expressed in the regime's structure, both in terms of articulating specific rules for management of what are essentially national resources, as in terms of incorporating a dynamic approach to financing them. The drafters framed the international biodiversity problem in a monolithic vision of aid channelled from the developed Northern countries to the biodiversity richer South.

The CBD's manner of managing a common goal is a poor reflection of the structure of contemporary global community and the multitudes of cooperation within it. Two distinct features of today’s governance environment are non-state actors and more innovative and closer methods of cooperation. Corporations themselves are looking for ways of “becoming involved”, either because of a perceived duty to good citizenship, their belief that their participation in the biodiversity efforts is beneficial for their public image (Neil Gunningham, 2009), or self-interest. Some areas of environmental law have come a long way from relying on the exclusively “moral” path of implementation towards integrating the dominant market ideology. (I elaborate on the paradigm shift in the environmental law and policy in the Section Why incentivise?). There is a demand from states and corporations to participate in the market structures; pragmatic governance avenues, it would seem, would be foolish not to accommodate this quest for market mechanisms.

The impetus for this study is provided by an interest in how the features of a changed governance architecture – more pronounced private sector involvement and greater use of market mechanisms in particular – have influenced the choice of instruments in the For example, the UK government-sponsored ‘Global Business of Biodiversity Symposium’, (2010) brought together “eminent business leaders and experts from around the world.” The Third Business and the ‘2010 Biodiversity Challenge Conference’, (2009) adopted ‘The Jakarta Charter on Business and Biodiversity’, (2009), which expresses “deep concern” about the dominance of business over the resilience of ecosystems, and their interest in tackling the problem.

An example is an ‘Agreement between the IUCN and Rio Tinto’ (2010); an earlier agreement between the IUCN and a different company from the extractive industry (Shell) was controversial, see (Kenneth Iain MacDonald, 2010).

The International Council on Mining and Metals (2003), of which Rio Tinto is a member, issued its Position Statement on Mining and Protected Areas that pledges its members’ commitment to not explore or mine in World Heritage sites.

These are taking place in the framework of preparation to introduce the Reduced Emissions from Deforestation and Forest Degradation (REDD) mechanism. The REDD is discussed below, in the Section on International incentives for protection of biodiversity and ecosystems services of the paper.

The Green Development Mechanism (GDM) is a tentative name given to an idea for a mechanism that would resemble the Clean Development Mechanism, but with a biodiversity component – rather than carbon emissions – being the “trading element”.

International incentive mechanisms for conservation of biodiversity and ecosystem services biodiversity regime. The assumption is that the biodiversity arena has not been immune to these changes, even if its attitude has been more reserved than that found in some other areas of environmental law, notably different kinds of pollution. To understand the ramifications in terms of influencing the management of a ‘common concern,’ I am interested in the shape that emerging incentives are taking. But equally important are the avenues in which the incentives develop. One of the consequences of the increased presence of private actors in global governance is the exploration of the avenues outside the inter-state regime. My analysis of the emerging means of protecting biodiversity therefore starts out from the CBD, but looks beyond it to other ad hoc avenues with varying memberships. The incentives developing here indicate the weaknesses of the existing inter-state regime, and reveal the demand for institutional and instrumental structures. The incentives outside the CBD broaden the debate about instrument choice to include also workable institutional arrangements that could accommodate them.

The process of providing incentives may be analysed from different perspectives, which also depends on the definitional questions. For the purpose of this overview, an ‘incentive’ is defined broadly as anything which encourages the actors to do something, 9 in this case with regard to inducing compliance with the CBD, and advancing the goal of biodiversity conservation. Also, the CBD has employed a wide conception of a ‘positive incentive measure,’ seeing it as “an economic, legal or institutional measure designed to encourage beneficial activities” (CBD, 2008) - primarily the conservation and sustainable use of biological diversity (UNEP/CBD, 2002b) (UNEP/CBD, 2002a Annex I, paragraph 1). An incentive should be, and is commonly understood, as being separate from the obedience of the law for fear of retribution or coercive forces. One can define the regulatory field in terms of, not only managing instruments, but also supplying shared norms and institutions, where these norms are implemented. Viewed in this way, an incentive measure is a measure which exists separate from the prescriptive legislation. It includes market or economic instruments (which prompts economic interests), but also information-based approaches (which trigger action on normative grounds). Explicitly, my conception of an incentive is somewhat different from that which forms one part of the binary compliance assistance–incentives, applied in the context of environmental law Matz differentiates between compliance and incentives, based on the question of ‘What comes first?,’ and is of the opinion that compliance may be induced, but by compliance assistance, not incentives (2006).

The view that compliance precedes, and is a condition for, incentives, and that compliance cannot be induced by incentives is apt in certain regimes, but not in the case of CBD. My claim is that the CBD is void of any compliance mechanisms as such, and that implementation of treaty obligations does not require an institutional structure. Because of that, I see compliance and incentives as more closely related to the case in point.

The chapter is structured as follows. The first part engages with the subject of inquiry by defining what parts of biodiversity are considered a global public good. The second part provides a starting point for the study of incentives: it articulates common action problems inherent in biodiversity management, and includes the weaknesses of the regime which was set up to tackle them. The third part describes the emerging international incentives being explored, both within and outside the CBD regime. These examples are not meant to be exhaustive or representative. Rather, I aim at introducing the variety of their appearances in terms of the actors involved and the strategies used. Finally, in the conclusion, I justify the importance of the process of incentivising biodiversity protection for lawyers, and conclude with an assessment of the implications for the legal category of a common concern, and public good as its economic ‘associate’. I should state at the outset that, while I indicate related issues Indeed, a dictionary’s understanding of incentive (Oxford Dictionaries, 2010) is rather broad: “incentive” is a thing that prompts/encourages one to do something, but also as a payment or concession to stimulate greater output or investment;


–  –  –

of fairness in this chapter as important, I do not elaborate on them, leaving the value of this topic still to be researched.

Biodiversity as a Global Public Good Commonly described as the “diversity of life-forms” or “variety of life on Earth,” biodiversity captures complex ecological realities at the genetic, species, and ecosystem level. But beyond that, the term also delivers many different social concerns and motivations for action. ‘Biodiversity’ is a broad concept, used in justifying the establishment of wilderness areas and agricultural gene banks, technological enhancements of production processes, removal of invasive species, and preservation of traditional ways of life. 10 Its components are said to benefit people's health and wellbeing, production industries, and national economies (see e.g. Chivian and Bernstein, 2008). The term itself has been critiqued for being a terminological construct with little scientific value, apart from justifying research funding (Ghilarov, 1996, p.304).

In view of a rich variety of biodiversity debates, it is not surprising that some confusion surrounds biodiversity's status as a global public good, seeing as both biodiversity conservation, as well as biodiversity as such have been labelled ‘global public goods’ (Perrings and Gadgil, 2003; McNeely, 1988; Swanson and Mullan, 2010; Barrett, 1997; Brahy, 2008 argues that in fact, biodiversity is ‘double public good’ for its informational but also insurance value). Reconciling the two, a third view suggests that “biodiversity has both domestic and global public good characteristics.” (Barrett, 1997, p.284). These diverging notions demonstrate, as a practical example, a weak consensus on some of the aspects of the term “global public good” (Kaul et al., 1999, p. xxiii).

In establishing why - or which part of - biodiversity qualifies as a global public good, I resort to the original and uncontested parameters of a ‘public good’ which were defined by the economic discipline, and then apply them to the legal definition of biodiversity. Most economics textbooks put forward the two primary determinants of public goods: that of non-rivalry and non-excludability. Any other criteria for establishing ‘public goods’ are contested, ((Buchanan, 1968) viewed public goods as directly linked to their joint provision, but he was challenged on that by (Demsetz, 1970)). The ‘global’ dimension was added to the concept later in order to deal with problems that transgressed the borders of individual countries (Kaul et al., 1999). This emphasis on the cross-border character is perhaps the main advantage of approaching biodiversity issues through the lens of a ‘global public good’. The framework is a pragmatic attempt to find truly global solutions to the problem, without downplaying the distributional concerns, which are necessarily enshrined in ‘public goods’.

Approaching the biodiversity issue as a global public good brings the spatially dispersed benefits of biodiversity to the forefront and at the same time the common dependence on them of all actors in the governance arena. Too often, biodiversity is treated only as a local and private asset.

While the local - or domestic - is certainly one of the two aspects of biodiversity, this contribution is more interested in the ways of managing its other side, i.e. biodiversity’s global benefits.

Biodiversity is a global public good to the extent that its benefits extend (well) beyond the borders of the countries which host the resources. In the following, I base my understanding of biodiversity as a global public good on two dichotomies which constitute two components of the public good. A reading of the Biodiversity Convention - in particular its provisions on definitional and jurisdictional aspects – along these dichotomies explains the nature of the term, and highlights its public-good aspects. ‘International’ draws attention to the international benefits of biodiversity, although the resources are governed by states and in possession by its peoples. ‘Biodiversity’ brings the value of One method to understanding the variety of areas covered by the concept is to venture through the many decisions of meetings of State Parties to the CBD.

International incentive mechanisms for conservation of biodiversity and ecosystem services diversity to the forefront, as opposed to that of individual resources, and acknowledges the presence of a dimension that is beyond the known and tangible resources.

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