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«EUI Working Papers RSCAS 2012/23 ROBERT SCHUMAN CENTRE FOR ADVANCED STUDIES Global Governance Programme-18 MULTILEVEL GOVERNANCE OF INTERDEPENDENT ...»

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Generalisation about which ecosystem services qualify as a global public good is both a complex and subjective matter. The MEA has spatially differentiated between ecosystem services and those which are provided and used locally - such as medicinal plants, food, and soil erosion -, and those which, despite being provided locally, provide also global benefits - such as carbon sequestration and storage. But defining the public aspect of biodiversity based on the benefits it generates, may be problematic when different benefits (one local and the other global) originate in the same resource. For example, while a forest purifies air locally, it also provides a global climate benefit. In that respect, the benefit of the concept of ecosystems services is not so much conceptual as linguistic. It speaks the language of utility, and highlights certain aspects of nature that have long been obscured, but does little to define the boundaries of biodiversity as a global public good.

There seems to be no reason for these services not to find expression in the framework of the notion of biodiversity, as the concept of biodiversity can be broken down into a typology which accommodates the meaning of ‘ecosystem services’. Holly Doremus (1991) for instance, divided biodiversity values into direct economic benefits, indirect (supporting) ecosystem services, and aesthetic and cultural benefits. This classification strongly resonates with the MEA's classification of ecosystem services into regulating, provisioning, cultural, and supporting services (MEA/World Resources Institute, 2005).

The most significant contribution to the discussions on biodiversity by the notion of ecosystems services is therefore its role in presenting the utility of nature for humans more explicitly. It reinvented the issue of biodiversity among the private sector, and is likely to significantly affect the appreciation of biodiversity in international policy discourses. (A remark from a facilitator at a business conference is illustrative of the point that ‘Biodiversity’ is a concept that the business world is struggling to understand: ‘[S]everal of our participants today have mentioned during their self-introduction that they honestly do not understand what biodiversity is. I myself, having studied various materials as a novice, still don’t understand why it’s called biodiversity.’ (Taisei Corporation, 2010), whereas ‘ecosystem services’ seem to translate well into the language of acquisitions, purchases, and trading. The concept is composed of words with a customary meaning, thus easy to understand, denoting an act of delivering a benefit or utility, normally in return for payment. Presented in this manner, biodiversity issues will certainly echo more in the corridors of companies.

The introduction of a new term - indeed a new concept -, however, may represent a more significant change in the regime than purely improved communication. It re-frames the problem and the objectives of action, possibly opening up new avenues of dealing with it (Hajer, 1997). The introduction of a new concept may be problematic in the sense that different obligations, which may not be consistent with those assumed under the treaty, are implied to be too dependent on understandings of utility of particular periods or elites. The abstract notion of “diversity of life”, which adequately captured the element of uncertainty, has become reshaped into a source of more concrete, but also more limited duties. TEEB defines ecosystem services as ‘conceptualizations... of the “useful things” ecosystems “do” for people, directly and indirectly, whereby it should be realized that properties of ecological systems that people regard as “useful” may change over time even if the ecological system itself remains in a relatively constant state.’ (Kumar, 2010, pp.12, 15).

International incentive mechanisms for conservation of biodiversity and ecosystem services Why Incentivise?

Apart from having determined the subject of interest, the previous section has not established a normative framework for guiding the use of the matter. The status of a public good itself dictates neither the management, nor the solution to the common action problems. Instead, a treaty regime, the CBD, is in place with its own objectives, processes and institutions. In this section, I turn to it in order to, firstly, establish the policy goals, and secondly, determine which aspects of these goals need a particular regulatory boost.

The regime The existence of a variety of objectives in the CBD reflects distinct interests which led to the establishment of this treaty, ranging from the desire to conserve nature to industrial concerns related to nature (Swanson, 1999). The CBD (1992), Preamble) confirmed all these interests as legitimate, as it ascribes biodiversity ecological, genetic, social, economic, scientific, educational, cultural, recreational, and aesthetic values.

Against this background, it will not come as a surprise that the conclusion of the CBD is to be seen as an agreement on how to reconcile and coordinate a wide range of interests which existed in the international community concerning the field of protection of nature. Despite having distinct goals, these movements also shared a common goal – that of “centralized development planning.” (Swanson, 1999). Reasons for international coordination in the field have long been present, as demonstrated not least by a number of conventions regulating the components of nature, some of which may rank among the oldest multilateral cooperation treaties.13 By the time the CBD was born, all of the most important conservation treaties were in place.14 Not only were the existing multilateral agreements targeting different aspects (from individual species to ecosystems), each also had its own regulatory techniques in place, including the type of commitments which they imposed on states parties, institutional arrangements, and mechanisms for designing and advancing policies. The CBD entered into a rich regulatory and institutional landscape.





Consonant with reasons of multilevel governance, more specific legislation on biodiversity was enacted at the national level, and further decisions were taken at the local level, where they, finally, were also implemented (Bilderbeek, 1992, p.13). Rather than overriding the latter, the aim of the CBD was to provide a coherent and comprehensive framework to a large body of previously concluded conservation instruments. Indeed, it succeeded to introduce “some order into disparate agreements regarding the protection of wildlife” (McGraw, 2002) by bringing in some overarching principles and The “International Environmental Agreements Database Project,” which lists over 1000 multilateral, and over 1500 bilateral environmental conventions, implicates that the oldest convention which deals with an environmental resource is the Convention between Baden and Switzerland Concerning Fishing in the Rhine and its Fluxes, as well as in Lake Constance, dating from 1875, see Convention pour l'accession de l'Alsace-Lorraine a la Convention conclue, le 25 mars 1875, entre la Suisse et le Grand Duché de Bade relativement à la pêche dans le Rhin et ses affluents ainsi que dans le Lac de Constance, signed on 14 July 1877 (data from Mitchell, 2002). The date of this treaty has preceded many trading treaties, and is comparable to the establishment of the first international organisations. For example, the Universal Postal Union was established in 1874.

For instance, all of the “big four conventions”, forming the core of international wildlife law, were already in place: the Ramsar Convention, (1971), Bonn Convention, (1979), World Heritage Convention, (1972), Convention on International Trade in Endangered Species, (1974). The term “the big four” was coined by Simon Lyster (1985). In addition, the Madrid Protocol to the Antarctic Treaty, putting in place a strict environmental regime on the Antarctic continent, was adopted in 1991 (Madrid Protocol to the Antarctic Treaty, 1991). It should be noted that the conservation and use of fishery resources have been developing quite apart from the terrestrial species and ecosystems. While the relevant global agreement – UN Convention on the Law of the Sea, (1982) – was already concluded, the more specific UN Fish Stocks Agreement (1995) and further regional treaties were only signed in the nineties.

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rules. It also ‘married’ two other goals, and established institutions to enable the international management process (Bilderbeek, 1992; Glowka et al., 1996).

Regime weaknesses It should be clear that the biodiversity regime should not be equated with the existence of the CBD.

But at the same time, the CBD embodies the central institutional and normative aspects of the protection of biodiversity. The CBD is the primary source that one turns to in order to establish the guiding principles of biodiversity management. Its authority stems from the intention of the parties to grant it the status of a principal forum for protection of biodiversity, and the thoughtful scientific input into its drafting (Tinker, 1995, p.194). It is also a widely representative and inclusive forum of states. 15 In the course of its life, the CBD has become a principal institution to formulate policies in the field (Mackenzie, 2010).

Yet, most conservation treaties existed in the shadow of more pronounced international treaties.

The common feeling that “international environmental conventions and treaties are often ineffective”16 applies also to the CBD. In terms of its reach, it is a largely unknown specialized regime, unfamiliar to the wider public and to considerations of other regimes; a regime whose obligations do not trickle down as expressly to the people's lives as those of, for example, human rights. Beyond public perception, the regime has not positioned itself strongly among other legal regimes. On a few occasions in the process of policy drafting - and even law-making -, the CBD has proved a powerless promoter of its own norms, unable to stand up against the goals of other regimes. 17 Biodiversity also remained a marginal issue in adjudication, with courts hardly engaging in the debate.18 Even the Convention perceives itself as an underdog. A Strategic Plan, adopted ten years into the regime's functioning, identified twenty-nine impediments to the implementation of the CBD, ranging over eight issue areas (UNEP/CBD, 2002d, Annex). Listed among the obstacles are the lack of political will, lack of economic incentives, lack of mainstreaming and integration of biodiversity issues into other sectors, institutional weakness, lack of horizontal cooperation among stakeholders, insufficient use of scientific knowledge, and lack of appropriate policies and laws. In fact, there is hardly any significant issue which is not mentioned in this self-diagnosis. The CBD perceives itself as an unfortunate member of the global governance hype. Even more unfortunate is that these problems As of 31 January 2011, the CBD has 193 State Parties, making it one of the most representative treaties in any field.

Notably, the US is not a party, and neither are Andorra and the Holy See.

The question ‘Why are international environmental conventions and treaties often ineffective?’ was posted at ‘Yahoo!answers’, (2011), which is a popular web-based avenue where the public can ask any type of question as an expression of a concern relevant for the public.

Controversies involved the issues of biofuels and deforestation on a policy level, and an actual legal arrangement which allowed for CO2 sequestration in the sub-seabed (see Bilderbeek, 1992; Koh and Ghazoul, 2008, on the clash between the rural development goals and carbon mitigation in biofuels; Rousseaux, 2005, on the systemic weaknesses of the CDM for possibly leading to harmful afforestation projects; Blessing, 2010, a case study on a village in Tanzania, where landintensive projects negatively affected the livelihoods of people who rely on land for food and other resources; Penca, 2009, on an amendment to the London Convention that effectively leads to a lowering of environmental standards).

Although general principles of environmental law (in the context of transboundary effects) apply to the biodiversity issues, the latter were specifically dealt with in only a few international cases: Southern Bluefin Tuna Fish Case, (1999);

WTO Appellate Body, (1998) looked at India etc. vs. United States – Import Prohibition of Certain Shrimp and Shrimp Products Report; another case in the framework of the WTO was The Tuna - Dolphin Case Mexico vs. Unites States (GATT Panel, 1991), circulated on 3 September 1991, but not adopted; biodiversity claims were considered by The United Nations Compensation Commission (UNCC) and these are the only known occasions when loss of biodiversity was given a compensable value; finally, a case was submitted to the FTA dispute settlement body, (1990): US – Canada Lobster Dispute decision 21 May 1990.

International incentive mechanisms for conservation of biodiversity and ecosystem services impeding the regime's better performance were continual, and not just associated with a particular period.

Some of the major weaknesses are integral aspects of the CBD's design. Commentators have looked at the Convention extensively, but only few critical analyses of its internal deficiencies have been made. These have mainly exposed two sets of deficiencies: firstly, weakness, vagueness and “lack of teeth” (Wold, 1998, p.1; Hendricks, 1996; Guruswamy, 1999); and secondly, insufficient attention devoted to international financing (Hendricks, 1996).



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