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Resources vs. diversity The first informative dichotomy is one between biological resources and biological diversity. The CBD defines biodiversity as “the variability among living organisms from all sources including, inter alia, the terrestrial, marine and other aquatic ecosystems and the ecological complexities of which they are a part; this includes diversity within species, between species and of ecosystems” (CBD, 1992, Article 2). Biological resources are individual components of biological diversity that, as such, do not have a value of a global public good, whereas biodiversity does have it. When outlining the difference, it is commonly mentioned that biological resources are tangible, ‘real entities’, while biodiversity is an attribute of life on its own terms (Glowka et al., 1996, p.20). In other words, biodiversity is a conceptual idea which cherishes the existence of diversity of genes, species, and ecosystems, rather than the existence of these individual components per se.

On a less abstract level, the notion of biological resources does not capture the very essence of the utility of biodiversity: the resilience of the biota as a whole. In the past, views concerning nature used to focus on species' diversity. Since the 1990s, however, it is this more comprehensive conception which underpins the modern conservation science (Gaston, 2010, p.11). The refocus of conservation to include also ecosystems' diversity is therefore rather recent in the historical perspective. This is a proper policy goal for two reasons: not only does it ensure the best realisation of the current ethical, aesthetic, and utilitarian values, it is also most conducive to future evolution and adaptation (Doremus, 1991, p.282; the health of ecosystems and their capacity to adapt to changes has become an even more important policy target in the context of climate change, see Watson et al., 2002). The latter function is that of insurance for the future. It is provided both by the genetic information and by the variety of ecosystems services. The discipline of economics has been particularly valuable in exploring the value and options in the field (see Perrings and Gadgil, 2003). The insurance value is only attained when individual components, or resources, are seen in relation to, or in the context of, a larger pool of resources - that of biodiversity. As with any insurance scheme, it may be useful to us in the future, but it is characterised by a strong element of uncertainty, due to which it is impossible to determine what parts of it will be needed, and should therefore be preserved. In view of these uncertainties, the question about how much and what to preserve is essentially a question about the level of risk we are willing to take. (The question of acceptable levels of risk and its management is central to much of substantive environmental law; see e.g. Elizabeth Fisher, 2006. Also more broadly, increasing regulation is in large part due to increased risks imposed on the society and regulation is about ‘risk management of risk management’, see Grabosky, 1995; Gunningham and Grabosky, 1998; Parker, 2002). These insurance benefits have a character of a public-good, and are associated with biodiversity, not biological resources.

The value that the CBD promotes through the notion of ‘biodiversity’ is precisely the variability, heterogeneity or multiplicity of living organisms and their surroundings. In the treaty, the difference between biological resources and their diversity is acknowledged in at least two ways. The first one is within the definition of biodiversity which speaks about ‘ecological complexities’ occurring among individual categories of genetic, species and ecosystem diversity (CBD, 1992, Article 2). Biodiversity exists apart from the three groups of genes, species and ecosystems that may be seen as resources, and proves that the notion of biological diversity is more than the sum of its components. The mention of ‘complexities’ implies a wide range of processes, including some that are indefinable and as of yet perhaps unknown, which are to be observed at the most comprehensive, global level. The second recognition of biodiversity as a separate category from resources in the CBD is the mention of ‘intrinsic value’ of biodiversity in the preamble of the CBD. This term establishes that nature carries a value apart from its utility to humans as a resource.

Jerneja Penca

National vs. international The second dichotomy useful for ascertaining the public-good-nature of biodiversity is the one between national jurisdiction over biological resources and the international interest in it. Although it is only in the last 50 years that “biodiversity loss has been constructed as an international problem,” (Kenneth I. MacDonald, 2003) the debate on the topic is well known in the field of international law.

International legal rules state unequivocally that sovereignty over biological resources belongs to states (as stated in Article 3 of the CBD, 1992, which reiterates the so-called Stockholm Principle 21, which asserts state sovereignty over its natural resources), and the ownership to its peoples.11 At the same time, the international community as a whole has an express interest in conserving these resources, for their benefits extend beyond the borders of a particular state. In the CBD, the relationship between state sovereignty and community interest is expressed through the notion of ‘common concern’, which appears in the preamble. Common concern refers to an action which needs to be undertaken, and the international interest associated with it (Juste Ruiz, 1999, p.414; Tim Swanson, 1999, pp.307–9). What is of ‘common concern’ is conservation of biodiversity, not the resources themselves.

The meaning and ramifications of the category of common concern are highly debated (Kiss, 1997;

Shelton, 2009; Brunnée, 2007), expressing that while not appropriated by the international community, the resources may still have some special value to it. It is suggested that what is of common concern needs to be managed as a community matter, implying a certain level of international ‘interference’.

This includes the right of each state, and essentially other actors, to have a voice and to take distributional concerns seriously. The management of common concern is also a dynamic process, associated with frequent meetings and consensual decision-making.

The shared interest is linked with certain responsibilities on both sides (Birnie and Boyle, 2001, chap.3, 136, draw attention to certain UN GA declarations that recognise these responsibilities), including the recognition of erga omnes obligations, and certain institutional arrangements which are conducive to the compliance with these obligations (Shelton, 2009, p.83). On the part of the states hosting biodiversity, the application of the notion of common concern means some limitation to the freedom in the way resources are being managed. On the part of those who have stakes, but lack actual biodiversity, duties mostly involve providing finance, but also capacity-building and technology; and additionally - to some extend - also the duty of, or right to, the elaboration of rules which guide the management of these resources (all these duties/rights are integrated in the CBD, 1992: Article 5 (Cooperation); Article 12 (Research and Training); Article 13 (Public Education and Awareness);

Article 17 (Exchange of information); Article 15 (Technical and Scientific Cooperation); Article 20 (Financial Resources); Article 21 (Financial Mechanism); Article 23 (Conference of Parties), which delegates to the COP some law-making functions). In order to define this type of sovereignty in relation to the issue of biodiversity, the notion of ‘custodial sovereignty’ has been suggested (Scholtz, 2005, p.9).

Despite not being enforceable, and falling short of having a real weight in the states' decisions, the concept of common concern has some value, not least in the context of normative framework for management of public goods. Its existence and the corresponding institutional arrangements are a continual testimony of the porosity of state boundaries and a more interconnected world community.

The shift towards a ‘community’ rather than ‘society of states’ is widely accepted, not only in the environmental context, but also elsewhere. The seminal work is by Wolfgang Friedmann (1964), although in Friedman’s book ‘environmental law’ is not included within ‘new fields of international law’ (Chapter 11), his arguments are widely relevant (see also Simma, 1994; Mahiou, 2008).

Many international legal sources, including the two human rights Covenants of 1966 (on civil and political rights and economic, social and cultural rights) affirm that the right to self-determination, including its attribute related to the control of natural resources, belongs to peoples, not states.

International incentive mechanisms for conservation of biodiversity and ecosystem services Nevertheless, scholars keep emphasizing the presence of the shared community values and their relevance for making sense of today's governance structures (Villalpando, 2010, follows manifestations of the ‘community interest’ in the international legal documents, and shows how changes in social intercourse at the global level have caused structural transformations of the international legal order; Stec, 2010, traces the notion of common concern back to the birth of the Westphalian nation state system, and recalls that the arrangement of international order around state sovereignty was in fact founded to uphold humanitarian principles, and that issues of common concern belong to that same ‘law of humanity’).

In debating the meaning of common concern and Principle 21 - as asserted under CBD -, one quickly forgets that certain, and indeed large, segments of global biodiversity lie outside national jurisdictions. Largely, these are marine resources because of the fact that large part of the oceans belong to areas outside national jurisdiction, and many species straddle between national borders and international areas. Although the principle of common concern is applicable to environmental concerns arising both beyond national jurisdictions and those within individual states, CBD’s provisions about jurisdictions beyond national control do not apply to the components of biodiversity per se in the same manner as they do within national jurisdiction (CBD, 1992, Article 4). In areas beyond the limits of national jurisdiction, States have obligations to (a) ensure that activities within their jurisdiction or control do not damage the environment of other states or areas beyond the limits of national jurisdiction (Article 3), and (b) to cooperate with respect to the conservation and sustainable use of biological diversity in areas beyond national jurisdiction, either directly or through the appropriate international organization (Article 5). Instead, in these areas, states seem to rely even more on the cooperative methods of managing the issues, which are of their common concern.12 Ecosystem Services as a Global Public Good As evident from the previous section, a broad definition of ‘biodiversity’ translates into opaque objectives of a governance framework. As such, it neither assists by establishing priorities nor by elaborating measures which are needed to maintain such biodiversity. It also hinders cost-effective measures in the circumstances of limited resources (Metrick and Weitzman, 1998; Weitzman, 1992).

More generally, it implies also a weak and uncoordinated framework for action in a governance issuearea, possibly risking conflicting measures as a result of diverging understandings. Against this background, the notion of ecosystem services emerged in the international institutional arena as a useful concept to highlight - more comprehensively - the benefits of biodiversity.

The notion of ecosystem services is not entirely new (the Millennium Ecosystem Assessment attributes the first usage of the term to King, 1966, and Helliwell, 1969, MEA/World Resources Institute, 2005, p.56). Its usage, however, was firmly put on the research agenda by a study on valuation of world's ecosystems by Costanza et al. (1997). Costanza and his colleagues in 1997, while the 2005 Millennium Ecosystems Assessment MEA/World Resources Institute (2005) and ‘The Economics of Ecosystems and Biodiversity (TEEB)’ (2008), launched in 2008, are seen as important milestones in popularising it. The MEA highlighted the dependence on ecosystems for human wellbeing, and stressed the need to better describe, quantify, and value, the benefits of the goods and services provided by ecosystems and biodiversity. The term denotes all the services which nature provides to the benefit of humans, coming in the form of freshwater, fibre, food, flood control, water Cooperative methods do not come automatically, and a complete failure to conserve fisheries by the international community in fact shows opposing picture than that of an exemplary cooperation of states. Rosemary Rayfuse (2007, p.366) succinctly notes that the difference between marine and terrestrial species has been perpetuated in the conventions pertaining to biological diversity, with the former more often being object of protection in the framework of efforts to conserve wildlife, while fisheries have mostly been seen as a resource, and have thus been excluded from the conservationist efforts.

Jerneja Penca

purification, waste treatment, pollination, recreational and cultural services, etc. The full knowledge of the relationship between ecosystems services and biodiversity is still evolving, but it is generally accepted that it is one of mutual supportiveness: ecosystem services maintain biodiversity, but the diversity of life also supports the normal provision of services (Daily, 1997, p.3). Or, to put it differently, one may be part of the other: “Diversity [...] is a structural feature of ecosystems, and the variability among ecosystems is an element of biodiversity.” (MEA/World Resources Institute, 2005, p.51).

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